Monday, March 31, 2008

N.S., Quebec: New Laws Will Curb Driving While Talking on Cell Phone, April 1, 2008

Driving While Talking to be OutlawedMy friend T. passes on this friendly memo from Bell Mobility regarding new laws that come into effect April 1st in two Canadian provinces that will regulate cell phone use while driving:

On April 1st, new laws regarding the use of mobile phones while driving come to effect in Québec and Nova Scotia. This means that only hands-free devices will be permitted while driving, i.e. headset, Bluetooth or in-car units.

Such a law is already in effect in Newfoundland other provinces are considering similar legislation. In Québec, there is a three month grace period during which only warnings will be issued. Following that, fines ranging from $80 to $100 and 3 demerit points will be imposed. Note that the law also applies to motorists who are stopped at a traffic light or stop sign.In Nova Scotia, police will initially issue warnings but there is no formal grace period. The fines will range from $165 for the first offence, $222 for the second offence and $337 thereafter.This is an important opportunity to reiterate the principles of responsible driving for our employees, whether on company business or personal time.

While on the road, your primary focus should always be on driving. There are many potential distractions, including interacting with other passengers, using the stereo, eating, grooming, etc.

When using a mobile phone while driving:

  • Avoid unnecessary calls and keep conversations brief
  • Suspend conversations when driving conditions become hazardous
  • Keep your eyes on the road and both hands on the steering wheel
  • Never email or text message while driving
  • Respect the law and use a hands-free device if required

- Garry J. Wise, Toronto

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Ontario Minimum Wage Increases Today

Wise Law Office, Toronto - Employment LawOntario's minimum wages have increased.

The Province's general minimum wage rises today to $8.75 per hour.

The minimum wage for students under 18 years of age rises to $8.10 per hour.

The chart below (click to enlarge), adapted from the Ontario Ministry of Labour, details the full schedule of minimum wage increases now in effect, along with additional increases scheduled through March 31, 2010:

Ontario Minimum Wage Increase Schedule

- Garry J. Wise, Toronto

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Sunday, March 30, 2008

Earth Hour: “Great Job Canada”

Promoted by the World Wildlife Fund, Earth Hour was a global effort to raise awareness of climate change.

Yesterday, between 8:00 p.m. and 9:00 p.m. Canada showed its support of the cause in numerous cities across the country.

World Wildlife Canada reports:

Earth Hour was a huge global success! On Saturday, March 29, from 8 p.m. to 9 p.m. people around the world turned out their lights for Earth Hour, sending a very strong message to our government, and governments around the world, that we need to take action on climate change now.

Beginning in Tel Aviv and ending in Vancouver, the lights went out and the celebrations began. Many iconic buildings and landmarks around the world turned out their lights, including the Golden Gate Bridge, San Francisco; Alcatraz jail, San Francisco; Sydney Opera House, Sydney, Australia; Brighton Pier, UK and the Sears Tower, Chicago.

Canada had one of the highest participation rates around the globe with over 150 cities participating. Great job Canada! Many buildings and landmarks also turned off their lights. These included the CN Tower, Niagara Falls, Toronto Eaton Centre, Fairmont Royal York Hotel, Honest Ed’s in Ontario; all buildings in which VanCity, BC Hydro and City of Vancouver operate; and the MacDonald Bridge, City Hall, and Parade Square in Halifax.

Thanks to everyone here in Canada and around the world that participated in the first ever, world wide Earth Hour! Your efforts and determination have made this an event to remember.

The Toronto Star reports that during Earth Hour, power usage in Toronto dropped 8.7% exceeding the City’s goal of a 5% power drop during the event.

- Annie Noa Kenet, Toronto

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UK Employers to Protect Against 3rd Party Sexual Harassment

Employers in the Canada and in the United Kingdom have a legal obligation to protect their employees from sexual harassment in the workplace.

Typical discussion of this obligation has focussed on the employer's duty to protect its employees from sexual harassment by other employees.

As of next week, however, employers in the U.K. will also have a specific legal obligation to protect their employees from sexual harassment advanced by third parties such as clients and customers.

The Guardian.com reports:

Employers will be duty-bound from next week to protect their staff from sexual harassment by customers, suppliers and others they encounter in the course of their work. Workers are already protected from harassment by colleagues, but under new rules which come into force on April 6, they will be able to seek damages from employers who fail to take reasonable steps to protect them from harassment by a third party, if bosses knew that at least two incidents had already taken place.

The government was forced to change the law after the then Equal Opportunities Commission - now part of the Equality and Human Rights Commission - won a ruling that the government had failed to properly implement the European equal treatment directive, which requires workers to be protected from "any unwanted conduct related to their sex which violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment".


The rules are expected to have their biggest impact in the catering, hotel and retail trades. The EOC told the high court that sexual harassment by customers was rife in the hotel and restaurant industry, which employs 670,000 women.
- Annie Noa Kenet, Toronto

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The Obama Playbook

The current, Five-Step Obama Campaign Playbook:

1. Declare presumptive victory before all votes are counted.

2. Repeatedly emphasize that it would be wrong, undemocratic and positively un-American to require all ballots to be counted, given that inevitable victory has already been achieved.

3. Repeated this mantra: "If the battle does not now end, America will surely self-destruct."

4. Firmly demand that the opponent withdraw for the 'good of the country.'

5. Repeat steps 1 through 4.

Sound familiar?

How about now?

- Garry J. Wise, Toronto

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Sunday Tunes: Who Fought the Law?

The weekend is upon us, so let's take a stroll through the YouTube archives to canvas a classic rebel-rock tune with a storied history:

"I Fought the Law" is a much-covered song originally recorded by Sonny Curtis and The Crickets (post Buddy Holly) in 1959. The song was famously covered by Bobby Fuller Four, who recorded a more successful version of the song in 1965, and The Clash, who recorded a punk rock version in 1978.

Our tour begins, then, with the classic take, from Bobby Fuller:

Canada's own Bryan Adams gives it a try:

You'll probably agree that Bryan did a whole lot better at fighting the law than did Alvin et al...

Still, with due acknowledgment to all the various pretenders, nobody has ever really fought the law quite the way The Clash did:

And finally, here's an interesting footnote for trival buffs.

Did you know that Sonny Curtis, the writer of I Fought the Law, also wrote "Love is All Around," the theme song for The Mary Tyler Moore Show?

- Garry J. Wise, Toronto

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Friday, March 28, 2008

Maybe Next Year....

The Toronto Maple Leafs have once again been eliminated from N.H.L. post-season contention.

With a 4-2 loss to the Bruins in Boston Thursday night, the team mathematically sealed its unhappy fate for the third consecutive year.

Toronto's second-favorite spectator sport - Leaf post mortems, recriminations and off-season dramas - may now accordingly begin.

Who should stay and who should go?

Will Brian Burke be the Leafs' new general manager when the puck is dropped for next season's opening faceoff?

Will Matts Sundin return?

Will anyone in Toronto still care?

Yes...

(Perplexingly, to the last question, at least.)

So, now that the game is over, let the real games begin...

- Garry J. Wise, Toronto

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Quotable: On Racism's 'Aesthetic Makeover'

Serious food for thought from David Sirota at Truthdig:

Since the 1960s, bigotry has undergone an aesthetic makeover. Today, the most pernicious racists do not wear pointy hoods, scream epithets and anonymously burn crosses from behind masks. They don starched suits, recite sententious bromides and stage political lynchings before television cameras. For proof, behold the mob stalking Barack Obama’s former pastor, Jeremiah Wright.

... It is polite pinstriped prejudice shrouding bigotry in feigned outrage against extremism—the operative word being “feigned.” After all, John McCain solicited the endorsement of John Hagee—the pastor who called the Catholic Church “a great whore.” Similarly, according to Mother Jones magazine, Hillary Clinton belongs to the “Fellowship”—a secretive group “dedicated to ‘spiritual war’ on behalf of Christ.” She is also friendly with Billy Graham, the reverend caught on tape spewing anti-Semitism. But while Wright’s supposed “extremism” blankets the news, McCain and Clinton’s relationships with real extremists receive scant attention.

Why is it “controversial” for one pastor to address the black community, racism and blowback, but OK for another pastor to slander an entire religion? Why is it news that one candidate knows a sometimes-impolitic clergyman, but not news that his opponent associates with an anti-Semite? Does the double standard prove the dominant culture despises a black man confronting taboos, but accepts whites spewing hate? Does the very reaction to Wright show he’s right about racism?

- Garry J. Wise, Toronto

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Thursday, March 27, 2008

Polygraph Results Ruled Inadmissible in Ontario Civil Courts

Via the always exceptional Cavanaugh Williams law blog, this report on a decision of the Ontario Divisional Court, ruling polygraph test results are inadmissible as evidence in Ontario civil court proceedings:

Justice Quinn reviewed the law. He said that evidence that a person has offered to submit to polygraph testing can be admissible, but that was a neutral factor here, since both parties had made such an offer. Secondly, the questions and answers from the testing can be admissible, if they constitute admissions against interest. But the test results themselves are not admissible because they usurp the jurisdiction of the trier of fact. As His Honour said, “the court should not delegate its jurisdiction, even on consent”. Hence, a new trial was ordered.

See: Petti v. George Coppel Jewellers Ltd.

A number of news, background and research articles on the efficacy of polygraph tests can be found here.

- Garry J. Wise, Toronto

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Matlow Inquiry Continuing April 8, 2008

According to a Canada News Wire release today, the inquiry into the conduct of the Honourable Judge Ted Matlow of the Ontario Superior Court of Justice will be continuing with the hearing of fresh evidence next month:

The Honourable Clyde Wells, Chief Justice of Newfoundland and Labrador and Chairperson of the Inquiry Committee created to review the conduct of the Honourable Theodore Matlow, has indicated that the Inquiry Committee will be reconvening its proceedings to hear further evidence in this matter. The hearing will take place in Toronto on 8 April , 2008 at 10 a.m., at 180 Queen Street West (courtroom 7C), Toronto, Ontario. The hearing will be open to the public.

After the inquiry has concluded its work, the Committee will report its findings and its conclusions to the Canadian Judicial Council in respect of whether or not a recommendation should be made for the removal of Justice Matlow from office. The Council will then decide whether to make a recommendation to the Minister of Justice that Justice Matlow be removed from office for any of the reasons set out in section 65(2) of the Judges Act. In accordance with Canada's Constitution, a judge may only be removed from office through a joint resolution of Parliament. The Council's mandate, under the Judges Act, is to make a recommendation in that regard. The Canadian Judicial Council is composed of the chief justices and associate chief justices of Canada's superior courts. Information about the Council, including documents related to the Inquiry Committee in this matter, can be found on the Council's website: www.cjc.gc.ca

It is both surprising and interesting that new evidence is now to be considered in this matter. The Toronto Star reported on January 11, 2008 that the inquiry hearings had concluded and that the panel had reserved its decision.

- Garry J. Wise, Toronto

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Tuesday, March 25, 2008

Legal Outsourcing to India

In the not too distant past, when people in the west thought of India, they thought of a country of sadhus, snake-charmers and saris; a country of tigers and elephants, poverty and congestion.

Those images are still very much a part of popular western perceptions of India.

But something has changed.

Discussion today on India is just as likely to be about the four Indian billionaires in the world's top ten list. Or the many Indian companies that have gone global with acquisitions all over the world, including Europe and North America.

Mostly though, when it comes to India, the subject now on most westerners' minds is outsourcing.

India has emerged as an economic powerhouse in the service industry.

Outsourcing to India started in the early 1990’s with medical transcription being the first known outsourced service. However, it is the IT and call centre outsourcing that really brought the Indian outsourcing industry into limelight. Today Business Process Outsourcing (BPO) Companies in India provide services in a wide spectrum of industries including call centre, data management, engineering, financial, healthcare and legal. The most recent addition appears to be reproductive outsourcing.

While Legal Outsourcing to India appears to be relatively new phenomenon, some US law firms have been outsourcing their patent work to India since as early as 1996.

Today outsourcing legal work to India is no longer a novelty. It's a reality which more and more corporations and law firms are exploring as a cost saving measure.

Legal Process Outsourcing (LPO) as it is called now got a big boost when corporate legal departments started to outsource their in-house legal work. The big US corporate names that have outsourced legal work to India in one form or another other include General Electric, Microsoft and American Express.

While the typical services provided by Indian LPO firms started with paralegal, secretarial, and litigation support work, however, Indian firms are now reportedly offering more valuable services, including contract review and monitoring, document review for due diligence, patent drafting, simple filings and legal research.

Anthony Lin of New York Law Journal, in his story on LAW.COM, says:

Legal process outsourcing vendors target the more mundane but nonetheless time-intensive tasks associated with legal practice, reviewing mountains of documents for discovery rather than drafting appellate briefs. Once the province of junior associates, such work is now more commonly handled by domestic staffing agencies fielding large teams of temporary attorneys.

While critics say that Indian lawyers can fulfill only the functions of paralegals and very junior associates, AsiaLaw.com reports that some LPO firms are trying to move up the value chain to more complex tasks, and the prospect of higher-value work has fuelled a surge in the number of
Indian firms eager to take on corporate outsourcing.

However, the fact remains that top-tier Indian law firms have largely shunned off shoring contracts who say they won’t be tempted until high-value services can engage their interest.

India has huge potential in legal outsourcing, with more than 200,000 Indians graduating from law schools each year. These English-speaking modestly paid lawyers familiar with common law principles offer significant value to foreign companies to reduce in-house legal costs. On top of everything else, the time difference of about 12 hours allow for overnight and 24X7 operations.

According to Lin:

LPO salaries for Indian lawyers are generally well below $10,000 a year. By comparison, a U.S. contract lawyer usually earns around $30 an hour while associate base salaries at major firms in New York start at $160,000 a year.

But the math is not that simple. Maintaining a group of lawyers in India imposes significant infrastructure costs on the outsourcing companies. Aside from office space and computers, the leading companies also have U.S.-trained lawyers working in both India and the United States to supervise the work of Indian staff. They also maintain client development teams to market services to U.S. companies.

Such costs explain why outsourcing companies usually charge clients around $30 an hour, lower than what a U.S. staffing agency would generally charge but not by the magnitude simple labor-cost arbitrage would suggest.

Where does Canada stand in all this action?

According to National Post, Canadian lawyers are also looking to India to lower costs. In a story “Service brings India to Canada's lawyers” the newspaper reported on the official launch of Legalwise, believed to be the first homegrown outsourcing firm that uses Indian lawyers to carry out assignments under the guidance of Canadian lawyers.

It is the brainchild of Toronto lawyer Gavin Birer, a former Bay Street corporate lawyer and former vice-president of legal and business affairs at Travelex Americas, a non-bank foreign-exchange firm.

"Clients are becoming more aware of the type of legal services they are getting and the costs associated with that," he said.

"We are not a law firm, we don't provide legal advice," explained Mr. Birer, noting his firm works with a team of 430 lawyers based in Mumbai and Pune, who are trained in common law principles, similar to Canada. Legalwise works with lawyers here to identify projects that can be tasked to India. That includes litigation and corporate commercial services, such things as legal research, document review and drafting, contract management, lease abstracting, and due diligence. "It's the lower end of the legal spectrum," he said.

The Canadian Corporate Counsel Association last year found that keeping costs down was the number two priority -- after keeping up with the volume of work -- among 32% of in-house lawyers it surveyed.

A 1,500-hour project would costs $375,000 if carried out here by a $250-an-hour junior lawyer. In India, the same job would be $50 an hour for a total project cost of $75,000 --a savings of $300,000.

With the potential for cost savings so huge, the gold rush is on. More LPO firms are mushrooming everyday, spinning up the competition for talent. Lin says:

As a result, many companies have turned away from the big cities like Mumbai, where real estate costs can be as high as in U.S. cities. British firm NewGalexy Partners opened an office in the smaller Indian city of Pune for that reason.

Opening in a smaller market was the only way to meet U.S. and European clients' expectation on costs and service.You can't do that in a major Indian city anymore. The labor supply is finite.

The other threat to the outsourcing industry in India is the possibility of opening of the Indian legal market to foreign competition, which has been on the cards for a few years now. Such a move would affect the ability of LPO firms to recruit top candidates, as foreign firms would likely be able to pay even higher salaries.

It may well be that as in the IT sector, at some point of time in the future companies and law firms may have to look for alternative offshore outsourcing locations.

The financial benefits of outsourcing are not necessarily without risks and challenges.

Worries over issues related to confidential information and lawyer-client privilege are common. People are concerned about someone who’s not a part of their company or law firm, particularly a non-lawyer, who is not bound by the same rules of ethics as lawyers in US and Canada, having access to confidential information.

These types of concerns are usually addressed with strict contracts. Some outsourcing contracts are reported to specify that off-shore lawyers' computers could only have limited access to the Internet to prevent the inadvertent disclosure of documents.

Outsourcing is also perceived as a long-term threat to the traditional on-the-job training system for new lawyers. The traditional routine jobs given to lawyers when starting out are essentially the jobs that are being outsourced. Firms could find that while they are saving money outsourcing, their young lawyers are not getting properly trained.

Further, there will obviously be loss of jobs here in North America, however it is no longer considered to be a serious concern. In the 2004 US Presidential Election Campaign, loss of US jobs to offshore locations such as India was a political hot potato. Not in the present election campaign.

The fact remains that offshore outsourcing has become an ongoing and long-term economic reality.

Today IT professionals from North America and Europe work in cities like Bangalore and Hyderabad in India.

Who knows, some years down the road, lawyers from this continent may be looking for jobs in India...

- Shashi K. Raina, Toronto


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Monday, March 24, 2008

SCC: Khadr Appeal May Consider Legality of Guantanamo Detentions

In a series of preliminary decisions, the Supreme Court Canada reiterated March 20, 2008 that it will allow a wide latitude of argument in its hearing of the Omar Khadr case as to "the legality of the detentions at Guantanamo in international law, and whether the Charter was breached by some form of Canadian complicity by interviewing [Mr. Khadr]and giving summaries of the interviews to the Americans."

The Court denied the Canadian government's motions to strike certain pleadings, to preclude the hearing of fresh evidence, and to revoke intervenor status granted to two parties, the University of Toronto, Faculty of Law — International Human Rights Clinic and Human Rights Watch and the British Columbia Civil Liberties Association, the Court .

Omar Khadr is a Canadian citizen who is imprisoned at the U.S. Naval Station in Guantanamo Bay, Cuba. He was 15 years old when he was captured in Afghanistan in July 2002. He is accused of five war crimes, including charges of murder in the grenade death of American soldier Christopher Speer. His trial before a U.S. military tribunal is scheduled for May 2008.

The Court's decisions were made in anticipation of its hearing on March 26, 2008 of an appeal by the Canadian government of a 2007 order of the Federal Court of Appeal granting wide disclosure rights to Khadr in his preparation for the U.S. military commission trial.

Khadr was granted disclosure of Canadian government's documentation for use in his defence at the military commission trial. The government's appeal will be conducted in a closed session of the Supreme Court of Canada.

As noted in The Court, a Canadian law blog that focuses Supreme Court of Canada matters:

It is settled law that the Crown is under an obligation to provide all relevant information to the defendant in a criminal trial, and also that "relevant" is very broadly defined: any information that has a reasonable possibility of being useful is considered relevant. It is also settled law that Canadian citizens are not uniformly entitled to information in the possession of the government of Canada. The question in this case is whether the Crown’s disclosure obligation applies to circumstances where (a) Mr. Khadr was captured abroad (in Afghanistan), (b) he was captured exclusively by the United States, and (c) he is being held by the United States without Canadian involvement.

In the decision under appeal, the Federal Court of Appeal held:

In these circumstances, the participation of Canadian officials in gathering evidence against the appellant at the pre-charge level raises, in my view, a justiciable Charter issue. They took an active role in interviewing the appellant and in transmitting summaries of the information collected to U.S. authorities. In doing so, they assisted U.S. authorities in conducting the investigation against the appellant and in preparing a case against him. Canada’s participation may have made it more likely that criminal charges would be laid against the appellant thereby increasing the likelihood that he would be deprived of his right to life, liberty and security of the person. I believe that in these circumstances the Charter applies.

In its rulings, the Supreme Court did allow the Crown's motion for a sealing order in relation to proposed fresh evidence which was given as disclosure in the U.S. proceedings. U.S. authorities indicated they would only allow the evidence to be tendered in the Supreme Court of Canada on condition of a sealing order being in place.

In an August 12,2007 letter, Canadian Bar Association President J. Parker MacCarthy, Q.C. called upon Prime Minister Stephen Harper to intervene to secure Khadr's release into Canadian custody:

I am writing on behalf of the Canadian Bar Association to urge you to negotiate with the U.S. government the release of Canadian citizen, Omar Khadr, from Guantanamo Bay. Khadr should be released into the custody of Canadian law enforcement officials, to face due process under Canadian law.

...In an April 2006 letter, the CBA urged you to condemn the failure of the U.S. to meet the underlying principles of the Rule of Law through its detention of “enemy combatants” at Guantanamo Bay. We remain convinced that the procedures for holding detainees, including denial of due process and the interference with privileged communications with their solicitors, constitute an affront to the Rule of Law. The fact that Omar Khadr was a minor at the time of his capture only makes his situation more urgent.

As a signatory to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Combat, Canada has an obligation to ensure that the Protocol is being applied to its citizens.

- Garry J. Wise, Toronto

This article is cross-posted at BAR-eX

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The Funny Judge

National Review delivers an instant classic in the rare art of comedic judicial reasoning, penned by Texas U.S. District Judge, Samuel B. Kent:

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact — complete with hats, handshakes and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions.

With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins....

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. Defendant's Motion for Summary Judgment is GRANTED...

It should be noted that not every day has been quite so amusing for Judge Kent, of late.

See Fifth Circuit Benchslaps the Naughty Judge Kent from Above the Law.

- Garry J. Wise, Toronto

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The Angry Judge

Well, actually, two angry judges.

One who was angry for good reason....

Texas Defense Lawyer Jailed Over Lewd Courtroom Gesture - from ABA Journal:

A Texas defense lawyer representing a client in a DUI case was jailed briefly last week after he allegedly made a lewd gesture to let the judge know what he thought of a prosecution complaint in the case.

Adam Reposa, 33, was held in criminal contempt of court and jailed pending sentencing the next morning, at the order of County-Court-at-Law Judge Jan Breland, reports the Austin American-Statesman. His gesture, according to the judge, constituted "intentional and contumacious conduct" during a pretrial court review of a plea bargain offered to his client.

Specifically, Reposa "made a simulated masturbatory gesture with his hand while making eye contact with the court in response to an objection by the state to his interference with the court plea bargain inquiry," the judge wrote in a judgment order filed March 11.

Although Breland apparently added a handwritten note at the bottom of the order stating "No bond without my approval," Reposa was released later that day on a personal bond by state District Judge Charlie Baird. He said bond is legally required in lawyer-contempt cases, according to the newspaper.

And another, angry for not so good a reason...

Judge Apologizes for Shackling Lawyer -WSJ Law Blog:

Last week, the D.C. Commission on Judicial Disabilities and Tenure determined that D.C. Superior Court Judge John Bayly Jr. violated the code of judicial conduct when he ordered a public defender, Liyah Brown, to be shackled and detained after an argument. Here’s the story, from the Legal Times.

According to the story, trial transcripts reveal that the incident began when the public defender told the judge that her client was “a homeless man.”
“I don’t know that he is,” responded Bayly. An argument broke out, and Bayly told Brown to “be quiet” and sit down.

When Brown failed to quiet down, Bayly called on a U.S. marshal to “[s]tep her back, please. Step her back.” Brown was then handcuffed, subjected to a pat-down search and held in a cell with misdemeanor defendants for about 45 minutes.

The commission determined that Bayly violated the code of conduct that says a “judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity.” According to the commission, Bayly has accepted the commission’s conclusion and recognized his violation. He also wrote a note to Brown apologizing for his actions.

And of course, feel free to click on Judge Judy above, to see her really lose it on an eBay con artist.

- Garry J. Wise, Toronto

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The Blogging Judge

Slate Magazine's blog on legal issues, Convictions, has a new contributor.

She is Nancy Gertner, a United States District Court judge for the District of Massachusetts.

Am I the only one who see a problem with this?

- Garry J. Wise, Toronto

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The Dialogue on Race in America

Barack Obama has called for dialogue on race in America.

Well, that long-overdue dialogue has begun. And not surprisingly, it isn't pretty.

Here are three must reads from two leading American commentators:

And while we're on this topic, in case you have not seen the entire clip, here is Reverend Jeremiah Wright's controversial post-911 speech that was at the genesis of last week's fiasco:


Below is a further clip, in which the Reverend opines very directly on the nomination battle between Hillary Clinton and Barack Obama:

- Garry J. Wise, Toronto


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Sunday, March 23, 2008

8-year-old Passes Law School Entry Exam in Brazil

The Associated Press reports on this odd law school tale out of Brazil:

An eight-year-old boy with dreams of becoming a judge has passed a law school entrance exam, shocking Brazil's legal profession and prompting a federal investigation.

The Universidade Paulista, a multi-campus private university, issued a statement acknowledging that Joao Victor Portellinha de Oliveira had passed the entrance exam and that it initially enrolled him. But he was turned away from classes when he showed up on Thursday with his father.

... The Brazilian Bar Association said the boy's achievement should be a warning about the low standards of some of the country's law schools.

Education Minister Fernando Haddad expressed concern and said he had ordered an investigation.

- Annie Noa Kenet, Toronto

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Pope Calls for Peace in Iraq, Tibet, Darfur

In his annual Easter mass, Pope Benedict called for peace in the world, citing specifically the regions of Iraq, Tibet and Darfur. He also baptized an Egyptian born Muslim man, which the Vatican explained in a statement released earlier, was in the spirit of Christianity as all newcomers to the religion are "equally important before God's love and welcome in the community of the Church".

The National Post reports:

The pope, who turns 81 next month, celebrated an Easter Mass for tens of thousands of people in driving rain in St Peter's Square as Christians around the world commemorated Christ's resurrection.

The Sunday mass came hours after an Easter vigil service on Saturday night where, in a surprise move, the pope baptised Muslim-born convert Magdi Allam, 55, an outspoken journalist and fierce critic of Islamic extremism

…"These are the scourges of humanity, open and festering in every corner of the planet, although they are often ignored and sometimes deliberately concealed; wounds that torture the souls and bodies of countless of our brothers and sisters," he said.

He called for "an active commitment to justice ... in areas bloodied by conflict and wherever the dignity of the human person continues to be scorned and trampled".

"It is hoped that these are precisely the places where gestures of moderation and forgiveness will increase!," he said, specifically mentioning Darfur, Somalia, the Holy Land, Iraq, Lebanon and Tibet.

He then wished the world a happy Easter in 63 Languages.

To all those celebrating, may you have a happy and peaceful Easter Sunday.

- Annie Noa Kenet, Toronto

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EU to Study Beijing Olympic Boycott over Tibet

The President of the European Union has called upon the EU to study a boycott of the Beijing Summer Olympics over China's continuing strife in Tibet:

European countries should consider a boycott of the Olympics in Beijing if the Chinese government continues to take a hardline attitude to unrest in Tibet, according to the president of the European parliament.

Hans-Gert Pöttering is the latest in a growing list of western politicians calling on China to open talks with the Dalai Lama, the exiled Tibetan spiritual leader, whom Chinese officials blame for inciting a wave of protests and riots over the past two weeks.

"If there continue to be no signals of compromise, I see boycott measures as justified," Mr Pöttering told Germany's Bild am Sonntag newspaper ahead of a debate this week about Tibet at the European parliament.

With less than five months until the Olympics begin on August 8, 2008, the Chinese government continues to defend its actions in Tibet, in the hope of minimizing controversy leading up to the games.

It may not work.

China's Response

CNN reports on China's response:

Information barely trickled out of the Tibetan capital Lhasa and other far-flung Tibetan communities, where foreign media were banned and thousands of troops dispatched to quell the most widespread demonstrations against Chinese rule in nearly five decades.

The Chinese government was attempting to fill the information vacuum with its own message, saying Sunday through official media that the restive areas were under control.

Xinhua issued several reports Sunday saying life was returning to normal in areas where protests took place in the wake of the Lhasa riots.

It said "more than half of the shops on major streets were seen reopened for business" in Aba, the center of northern Aba county in Sichuan province. It quoted county Communist Party chief Kang Qingwei as saying government departments and major enterprises were "running normally" and that schools would reopen on Monday.

Aba is where Xinhua has said police shot and wounded four rioters in self-defense. It was the first time the government acknowledged shooting any protesters. Xinhua also said Xiahe in Gansu province was returning to normal after rioting last week.

The government was in control in Maqu, also in Gansu, Xinhua reported, quoting the local government as saying 70 percent of the shops in the city were looted or damaged by rioters.

There was no way of independently confirming Xinhua's reports.

Protests in Tibet

This is a chronological summary of the Tibet protests to date, summarized from various CNN reports:

  • March 10, 2008: Coinciding with the 49th anniversary of Tibet’s failed uprising against Chinese rule that triggered the Dalai Lama’s exile from Tibet, protests erupt in various regions of India where Tibetan activists were planning to commence a 6 months march to Tibet. Their arrival in Tibet was scheduled to coincide with the commencement of the Olympic games. Most of the protesters wore bandages covered in blood, and/or Olympics rings around their necks. Tear gas and rocks were exchanged between citizens and police in India who quickly released an Order banning activists from partaking in the march.

    When Activists in India learned that approximately 300 monks were marching in protest to Chinese rule in Lhasa, the capital of Tibet, activists in India chose to defy the government’s Order and began marching towards Tibet in protest.

    Due to the blackout of international media in the Tibetan region, reports of the protests taking place in the Tibet region, were largely based on eye witness accounts and activist groups. It was reported through them that 71 monks were detained as a result of the monks’ protests and that Chinese police and authorities were beginning to surround various areas in Tibet, specifically targeting monasteries.
  • March 12, 2008: the Chinese government issues a letter to China’s mountaineering Association advising that anyone requesting permission to climb mount Everest must be denied. It is reported that China plans to run the Olympic torch through the region, and is fearful of potential protesters interfering with the run.
  • March 14, 2008: Radio Free Asia, reported that three major monasteries in Tibet were completely surrounded by Chinese forces, that some monks were partaking in a hunger strike, and that at least 2 monks had attempted to commit suicide. The Chinese government requested that protesters in Tibet sign an agreement to refrain from future protests, but the request was refused. Unconfirmed reports begin to surface of protests turning violet with alleged gunfire and Chinese shops and windows being burnt.
  • March 15, 2008: Xinhua (China's official news agency) reports 10 deaths as a result of the protests in Lhasa and 61 arrests. Tibetans exiled in India report up to a 100 fatalities.
  • March 17, 2008: A rare video is released showing Chinese police in riot gear and the Dalai Lama speaks out calling for a “probe” of China’s human rights’ policies. He clarifies that Tibet is seeking “autonomy” not “ separation” from China.
  • March 19, 2008: An Austrian tourist releases another video of Tibet showing protesters burn and smash Chinese stores and windows. Xinhua advises that protesters are turning themselves in to Chinese authorities in exchange for promised leniency.
  • March 21, 2008: Xinhua reports that riots have spread into Provinces neighbouring Tibet. Chinese authorities set up Blockades and checkpoints throughout Tibet and neighbouring regions.
  • March 22: Xinhua releases a list of 21 most wanted protesters, offering rewards to tipsters. Its official death toll is raised to 22.
  • Today: China responded, as reported above.

Media outlets continue to have difficulty reporting on the conflict as a result of China's restrictive access to the region and media blackouts.

Toronto Mayor to Attend Chinese Trade Mission

Toronto Mayor David Miller is scheduled to attend a mission to China to discuss various issues, including human rights policies, climate change and free trade on April 13- 15. The Toronto Star reports that the mayor has confirmed that the mission will proceed in spite of the ongoing controversy.

During the International Olympic Committee's vote to determine the host of the 2008 summer Olympic games, Toronto came in second to Beijing.

Growing Controversy

An assortment of additional, ongoing controversies in China are at the root of various other calls for a Beijing Olympic boycott:

  • Animal cruelty: In preparation of the Olympic games, China’s clean up of stray cats includes cramping them into cages and sending them to “death camps” at the edges of the city. The cat cleaning controversy is occurring just one year after the government implemented the same procedure for stray dogs.

  • Darfur: Approximately one month ago, Steven Speilberg, who had been scheduled to be the artistic director of the games’ opening and closing ceremonies, removed himself from the role citing China’s lack of action in the Darfur region. China reportedly purchases approximately 2/3 of Sudan’s oil. Other celebrities including George Clooney, Mia Farrow and Richard Gere have also spoken out about China’s mishandling of the Darfur crisis.

  • Human Rights: Among the many ongoing human rights abuses in China, in an effort to clean its streets for the Olympics, China is implementing strict policies with reference to the mentally ill and homeless. It was reported that last month a citizen was beaten to death by Chinese policies after filming a conflict between the police and a street Vendor on his cell phone.

Further reading:

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Saturday, March 22, 2008

Obama Rules

Finally I get it.

These are The Rules of the Democratic nomination battle, as adopted by supporters of the Barack Obama campaign:

Rule 1:

Every word Barack Obama (or any one of his supporters) shall utter shall be deemed to be historic, monumental and as pronouncing a self-evident, higher truth never before heard.

Rule 2:

Every word uttered by Hillary Clinton, Bill Clinton (or any other supporter of the Clinton campaign) shall be deemed to be controversial, divisive and solely driven by a shameless desire for political gain, at any cost.

Simple.

Now, at last, I understand.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Video: "It's Raining McCain...?"

Meet the McCain Girls...

Ouch...

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

BBC Video: Tent Cities Spring Up In U.S. Due To Mortgage Crisis

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Friday, March 21, 2008

The Gullibility of Andrew Sullivan

On the fifth anniversary of the commencement of American hostilities in Iraq, leading conservative blogger Andrew Sullivan has responded to Slate Magazine's request that he reflect on his "own failings of judgment" as a staunch supporter of the Bush administration's 2003 march toward war.

Mr. Sullivan's self-serving mea culpa - in which he admits only to such head-scratching pseudo-intellectualisms as "historical narcissism," "narrow moralism" and good, old-fashioned "unconservatism"- regrettably neglects to address his major, apparent failing:

Gullibility.

When Colin Powell made his infamous presentation of "proof" to the United Nations Security Council on February 5, 2003, the delegation from France immediately knew Secretary Powell had his "facts" wrong.

So did the Germans.

As did Canada's Prime Minister at the time, Jean Chretien.

And sitting in my own armchair as I watched Mr. Powell's speech on television, I also knew, as did countless millions of American and other observers worldwide, that the Secretary of State's "facts" were thin as mountain air.

So why, then, did Andrew Sullivan and his ilk so readily and glibly jump aboard the Administration's public relations bandwagon to propel the United States into this miserable and ineffectual war?

They were gullible, that's why.

They simply believed what they were told, and marched ahead to the war's drumbeat, like good little stenographic soldiers.

They summarily dismissed every serious factual doubt raised about the Administration's dire claims of imminent mushroom clouds. They viciously characterized all dissent as the mad ravings of unpatriotic, ignorant leftists. They shunted aside questions from abroad as the crotchety concerns of an out-of-touch "old Europe."

Mr. Sullivan and his compadres were so gullible, in fact, that each day in the lead up to the war they simply parroted the Administration's spin du jour on their blogs and journals, adding their own clever twists to the Administration's blatant deceptions. They thereby took on a major role in the spread of disinformation that before very long, led American tragically into this ongoing and dangerous foreign policy embarrassment.

Soon enough, we learned the French and the Germans and the armchair observers worldwide had it right, all along - there were no weapons of mass destruction in Iraq. Saddam, as evil as he may have been domestically, was no threat to the U.S.

And soon enough, too, we also learned that even within U.S. intelligence circles, only a minority cabal of neoconservative agents had ever been convinced of any military threat posed by the deposed Iraqi dictator to neighbouring countries or the domestic U.S.A.

From Richard A. Clarke and others, we learned what "cherry picking" intelligence means.

We saw critics like Ambassador Joseph Wilson savaged with the kinds of unflinching personal attacks by the Administration that ultimately led to the criminal convictions of Scooter Libby, disbarred yesterday for his role in obstructing U.S. Attorney Patrick Fitzgerald's investigation of the Administration's shameless leaks of the identity of Mr. Wilson's wife, Valerie Plame.

So I will suggest that Mr. Sullivan add gullibility to his list of failings.

The record indicates that he showed inadequate interest in getting his facts straight, as he joined the chorus of Administration hacks that blasted away daily at those who were guilty of asking all the right questions.

It is worth recalling that the now-repentant Mr. Sullivan did so back then with a straight face - because he genuinely believed what he was told.

Most regrettably, judging by Mr. Sullivan's recent musings on the current Democratic nomination battle, this personal failing remains both unrecognized and unmediated.

Daily Dish buyers, beware.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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It's The Easter Beagle...

Have a good holiday...

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Thursday, March 20, 2008

Scooter Libby Disbarred

It was perhaps an anticlimatic footnote to a notorious downward spiral, spiked by political scandal and corruption, and culminating last March with convictions on perjury and obstruction of justice charges.

Lewis "Scooter" Libby, former chief of staff to U.S. Vice President Dick Cheney, was disbarred today by the District of Columbia Court of Appeals.

The disbarrment precludes Mr. Libby for practising law in D.C. only.

On March 6, 2007, Mr. Libby was found guilty on four of five charges of obstruction of justice, perjury and lying to the FBI during its investigation into a leak to reporters in 2003 of the classified identitlyof CIA operative, Valerie Plame.

President George W. Bush commuted Mr. Libby's 30 month jail sentence in July, 2007.

The appellate court's concise disbarrment ruling in In re I. L. Libby stated:

When a member of the Bar is convicted of an offense involving moral turpitude, disbarment is mandatory. D.C. Code § 11-2503 (a) (2001). When convictions on more than one count are involved, disbarment is mandated if any one of them involves moral turpitude. In re Lipari, 704 A.2d 851, 852 (D.C. 1997) (citation omitted). This court has held that obstruction of justice (18 U.S.C. § 1503) and perjury (18 U.S.C. § 1623) are crimes of moral turpitude per se. In re Gormley, 793 A.2d 469, 470 (D.C. 2002) (citations omitted). Since respondent was convicted of each of these offenses, as the Board concluded, disbarment is mandatory under D.C. Code § 11-2503 (a). Neither Bar Counsel nor respondent has taken exception to the Board’s Report and Recommendation.

Accordingly, it is hereby ORDERED that I. Lewis Libby, Jr. is disbarred from the practice of law in the District of Columbia, and his name shall be stricken from the roll of attorneys authorized to practice before this court.

from DCCA Opinion No. 07-BG-179

Also see: Cheney's former chief of staff disbarred - CNN

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Bits and Briefs

With a holiday weekend just ahead, it's time to catch up with a few stories, some old and some new:

  • A lawsuit is obviously ahead between the Redneck Shop, "a KKK store" in Laurens, South Carolina, and David Kennedy, its black, civil rights activist landlord. "Since 1996, the Redneck Shop has operated in an old movie theater that, according to court records, was transferred in 1997 to Kennedy and the Baptist church he leads." The landlord's has a bit of a legal problem here, however. The "KKK Store's" owner holds a lifetime lease for the premises. See: KKK store, civil rights activist landlord may go to court - CNN

  • The Supreme Court of Canada will hear argument next week on whether the Vancouver municipal transit system was wrong to refuse "rock the vote" ads from the Canadian Federation of Students during the last provincial election. The ads, which focused on tuition costs, minimum wages and similar issues were rejected as overtly political. Writing in the Vancouver Sun, Jamie McLean comments, "While probably based on good intentions, the GVRD policy constitutes a deliberate form of government censorship. The government does not have to provide spaces for public speech or advertisement, but once it does so it cannot then dissect Charter protected expressions into classes of suitability." - See: One of our vital freedoms is at stake in court ruling - Vancouver Sun

  • LL.B or J.D.? - The University of Western Ontario's law school will decide this vital question March 31st.

  • An Ontario Superior Court judge has stayed cocaine trafficking charges against a man tasered twice by police - once after he was already subdued. Ruling that the tasering infringed the accused's Charter rights, Judge David Brown said: ""Officer (Michael) Fonseca deployed his Taser well after Mr. Walcott had been subdued and handcuffed.. In addition, since the discharge of a Taser after a person has been restrained and controlled would have no other purpose than to punish the person ... I find that Officer Fonseca's discharge of his Taser on Mr. Walcott constituted cruel and unusual treatment." See: Tasering violated man's rights, judge rules - Toronto Star

  • Two New York lawyers are suing the chain smoker next door for damages over smoke that they say chronically seeps into their apartment and common areas. They say their neighbour's smoking "makes the hallway smell like a Las Vegas casino." - New York Times (h/t - Overlawyered)

  • The Court of Appeals for Ontario has overturned a contempt conviction against Ken Peters, a journalist with the Hamilton Spectator. Mr. Peters was held in contempt in 2004 for refusing to divulge his sources in a civil action between the St. Elizabeth Home Society retirement home and Hamilton-Wentworth Region. Mr. Justice Robert Sharpe stated contempt proceedings should be used only as a "last resort. " He wrote, for the Court, “As the confidentiality of a journalist's source implicates Charter rights and values, every effort should be made to minimize the impact upon those rights and values.. It is sufficiently apparent that the likely effect of revealing a journalist's confidential source will be to discourage from coming forward other potential sources who, for whatever reason, need to conceal their identity... " See: Contempt conviction against journalist overturned - Globe and Mail; CJFE Calls Decision in Source Protection Case an Important Step Forward - Canada News Wire Release from Canadian Journalists for Free Expression

  • Conservative Senator Hugh Segal is staging a battle to keep the Queen in Canada's citizenship oath, in response to a class action suit filed in Ontario Superior Court by lawyer Charles Roach, "who was never granted citizenship because he objects to the monarchy's connection to slavery and refuses to take the oath." See: Senator determined to keep Queen in citizenship oath - St. Catharines Standard

  • Toronto parking tickes are now more expensive - in some cases, up to three times as expensive - City News

  • And finally, a British woman who claimed she was discriminated against by co-workers because of her chronic flatulence from irritable bowel syndrome has lost her claims of disability and racial discrimination and constructive dismissal before an employment tribunal in Leeds. - BBC

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Wednesday, March 19, 2008

McCartney v. Mills-McCartney

Just so you can't say we aren't meeting all of your celebrity justice needs:

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Barack Obama's Speech On Race Relations



Like so much in this U.S. Presidential nomination cycle, reaction to Barack Obama's speech yesterday on race in America was all in the eye of the beholder.

My friend, Barry Brown, was exuberant:

I said Barack Obama had to give his inaugural address now and that's just what he did.

His speech on race had been compared to King's Dream for the modern era. Flanked by the flags, he looked completely presidential. He set the tone of what his Administration will be about. Completely consistent with everything else he's said and proposed.

Let's reason together and understand together.

What a novel concept after the Bush years. How tragic that it is so. But how wonderful the long night is ending and a new dawn emerging.

My reaction...

What's all the fuss?

I absolutely agree with the substance of Barack Obama's message.

I've also heard essentially the same message delivered equally well before - by American leaders on race relations from Bill Cosby to Bill Clinton - and I have agreed with them too.

It was a good speech. Well-written and well-articulated, but hardly groundbreaking, in spite of all the hyperbole generated in its immediate aftermath.

It was not even one of Mr. Obama's most electrifying or inspiring moments, in my view. Beyond that, I fear it may add to the polarization already emergent, in spite of its best intentions to the contrary.

I do not see this speech as changing anything in this election.

Or in America.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Tuesday, March 18, 2008

Supreme Court of Canada - Flies in The Water Bottle

The Supreme Court of Canada heard argument today in the case of Wadda Mustapha, an Ontario man who sued a home drinking water supplier for damages, after finding dead flies at the bottom of a water bottle in his home.

Mr. Mustapha claimed damages for emotional distress, depression, phobia and anxiety.

A 2005 Ontario trial court's ruling that granted him damages of $341,775.00 was overturned by the Court of Appeal for Ontario in 2006.

The Plaintiff then appealed to the Supreme Court of Canada. A decision is expected in approximately six months.

More reading:

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Ryerson Student Won't Be Expelled Over Facebook Study Group

We reported on the case of Chris Avenir last week.

He's the student at Toronto's Ryerson University who faced expulsion over charges that a Facebook study group he administered facilitated cheating among the group's members.

Today, the decision of an appeal committee that heard Mr. Avenir's case last week was released.

Mr. Avenir will not be expelled. But while Ryerson declined to impose the most serious of academic misconduct penalties on Mr. Avener, it appears the 18 year-old engineering student wasn't entirely cleared, either.

The Engineering Faculty Appeals Committee's decision was reported by Ryerson's campus newspaper, The Eyeopener:

The Eyeopener) - A student who attracted international media attention when he was accused of academic misconduct on Facebook will not be expelled from Ryerson.
The school e-mailed its decision to first-year engineering student Chris Avenir Tuesday afternoon. He said he felt relieved when he read the decision. Avenir was targeted by Ryerson when he became the administrator for a Facebook group last semester, where members of the group could exchange class-related material.

But the student isn't off the hook. He will receive a zero for the assignment he is alleged to have cheated on, and he will have to attend an academic integrity tutorial before the end of the Fall 2008 term. As well, he will have a disciplinary notice placed on his record. The notice will be gone upon graduation, Avenir said.

But the door is still open for the school to become involved with the conduct of students when they're online.

"The argument that a student should be entitled to do whatever they want online is a false argument," said university spokesperson James Norrie, after learning of the school's decision through a reporter and not through the university. Avenir has not decided if he'll appeal the disciplinary notice.

The Toronto Star adds a bit of detail:

In a landmark ruling on Internet use, a disciplinary panel at Ryerson has ruled the first-year engineering student should not be drummed out for helping run a Facebook study group in chemistry last fall, and ordered his passing mark in the course restored.

In a seven-page ruling, the engineering faculty appeals committee found no proof the Facebook site actually led to cheating by any of its 147 users, even though it invited them to "post solutions" to homework that was worth 10 per cent of the final mark.

But the committee ruled that because the site provided "the potential for large-scale cheating," Avenir should get zero on that 10 per cent portion – which won't change his passing grade – and that he attend a workshop on academic integrity.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Lap Dance Litigation?

From the city that never sleeps, via Associated Press:

NEW YORK (AP) — A businessman claims in a lawsuit that he was injured when a stripper giving him a lap dance swiveled and smacked him in the face with the heel of her shoe.

Stephen Chang, a securities trader, said in court papers filed Friday that he was at the Hot Lap Dance Club near Madison Square Garden and was getting a paid lap dance when the accident occurred early Nov. 2, 2007.

According to the lawsuit, as the dancer swung around, the heel of her shoe hit him in the eye, causing him “serious injuries.”

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Monday, March 17, 2008

The Anatomy of a Lawsuit - Part 1

The Nuts and Bolts of Civil Legal Proceedings in Ontario

If you've ever been involved in civil litigation in Ontario, you've probably asked these questions:

How does the court system work? What is the next step in my lawsuit? When is the other party going to file its documents? What is a motion? What happens at a pre-trial hearing? What must be done to get a trial date scheduled?

What is going to happen next? And when?

In this series of articles, we will take a brief look at the way Ontario's litigation process works. We can't promise that it will be the most exciting read we've ever offered, and the truth of it is, much of this subject matter is by definition a bit technical.

However, we hope it will be a bit of a step-by-step resource and roadmap for individuals encountering Ontario's civil courts and judicial processes for the first time - and maybe even for those who are there for the second time, too.

....

Part 1

In this installment, we'll discuss the steps involved at the beginning of a legal action in Ontario. We'll go over some basic, preliminary definitions, and then canvas the steps and timeframes applicable at the outset of an Ontario civil lawsuit.

All procedures in the Province's civil court system are governed by an Ontario Regulation called the Rules of Civil Procedure ("The Rules").

The Rules are the bible of Ontario civil litigation. They set out the groundrules covering each step in a lawsuit, often to the most minute detail. They are complex at time, and parties often require the assistance of Ontario's motions courts to interpret their intricacies.

It would not be possible to canvas the Rules fully in articles of this scope. For the benefit of our readers, however, we will address the major steps in a lawsuit, without delving into the finer procedural details.

Of course, our comments will by necessity be general in nature and are not intended as legal advice. If you have specific questions affecting you own litigation, it is important that you obtain legal advice from a licensed Ontario lawyer

Basic Definitions

A plaintiff, simply put, is a person (or legal entity such as a corporation) that has commenced a civil lawsuit. According to etymonline, the term has an interesting history:

Plaintiff - c. 1400 - from the "Anglo-Fr. pleintif (1278), noun use of O.Fr. plaintif "complaining," from pleint...Identical with plaintive at first; the form that receded into legal usage retained the older -iff spelling.

A defendant is a person or legal entity that has been sued in a civil lawsuit and must defend it. This word also has a meaningful etymolgy:

Defend - c.1250, from O.Fr. defendre, from L. defendere "ward off, protect," from de- "from, away" + fendere "to strike, push." In the Mercian hymns, L. defendet is glossed by O.E. gescildeð. Defendant is from O.Fr. prp of defendre.

A pleading is a formal legal document filed by a party to a lawsuit that sets out the party's factual allegations and legal position in the court proceeding. In Ontario's court system, the pleading utilized by a plaintiff to commence a a civil suit is called a Statement of Claim, while the Defendant's responding pleading is called a Statement of Defence.

What is Civil Litigation?

The term "civil litigation" refers generally to all court proceedings between private individuals and/or corporations in which compensation or other legal remedy is pursued by one against the other.

Typical categories of civil litigation include wrongful dismissal, personal injury, defamation, negligence, malpractice, product liability and debt collection claims.

Ontario's Courts

There are two levels of trial court in Ontario's civil justice system.

  • The Superior Court of Justice is Ontario's high court. It has branches throughout the province, and was previously known as the Supreme Court of Ontario.

  • Small Claims Courts also operate throughout the province, and as implied by the Court's name, adjudicate matters of lower financial value. Ontario's Small Claims Courts have jurisdiction to determine claims valued at up to $10,000.00. The Court has its own distinct procedures - the Ontario Small Claims Court Rules. Small Claims Court forms, which are required in all actions in the Court, are available for free download online from the Ontario Court Services website. Our comments below are not applicable to Small Claims Court actions.

Family Law proceedings also have a discrete set of rules, practices and procedures, set out in Ontario's Family Law Rules - that differ from the steps below. We will be addressing Ontario Family Law procedures in a subsequent article.

Which Court, Which Stream?

In the Ontario Superior Court of Justice, there are two procedural streams available for Ontario's civil actions.

The Court's Ordinary Procedures apply to all actions in which claims are advanced for compensation of more than $50,000.00.

The Court's Simplified Procedures apply to actions in which compensation of not more than $50,000.00 is claimed. If there is more than one Plaintiff, and if each Plaintiff’s claim is not more than $50,000.00, the action will be governed by the Simplified Procedure, even if collectively the claims exceed $50,000.00. The Simplified Procedures are intended to streamline court processes in order to limit legal expense and expedite resolution.

The main procedural difference between Simplified Procedure actions and Ordinary Procedure actions is that under the Simplified Procedures, Examinations for Discovery are not available. These examinations are part of the disclosure process, discussed further in our next installment.

Both streams follow the same processes to initiate a lawsuit in Ontario, so our comments that follow about this initial stage will apply to proceedings commenced under both the simplified and ordinary proceeding Rules.

Note: We have included hyperlinks within the text that follows to the specific Rule that relates to each document and step discussed. Clicking on the highlighed text will take you to the applicable Rule in Ontario's Rules of Civil Procedure.

Starting a Lawsuit in Ontario Superior Court of Justice

Pleadings

A legal action is commenced with the issuance of a first pleading, a legal document referred to as an originating process, at any Ontario Superior Court of Justice office.

This step, of course, must be completed before the expiry of any deadlines, or limitation periods, applicable to the proceeding. It is critical that you consult with a lawyer to determine the deadlines that may be applicable to your specific circumstances.

We will now canvas the specific legal documents that are typically required at the outset of a legal action Ontario, along with the timeframes for the delivery of each document, as set out in the Rules:

  • Certain, types of court proceedings that are specified in the Rules may be commenced with a Notice of Application, rather than a Statement of Claim. Please note that we will not be addressing procedures in these kinds of cases in this article.

  • Timeframes for delivery of a Statement of Defence: Once served with a Statement of Claim, each Defendant who has been served in Ontario has twenty (20) days from the date of service to deliver Statement of Defence. If a Defendant is served elsewhere in Canada or the U.S., the Defence must be served within forty (40) days. If a Statement of Claim is served elsewhere in the world, a sixty (60) day deadline applies. A Defendant may automatically obtain a ten-day extension of the applicable deadline if a Notice of Intent to Defend is delivered within these timeframes.

  • A Plaintiff may deliver a Reply to the Statement of Defence within 10 days after service of Statement of Defence. If no Reply is filed, all allegations in the Defence are deemed to have been denied.

  • If either party wishes that the action to be tried by a Jury, a Jury Notice must be served before close of pleadings (pleadings are deemed to have closed when a Reply to the Defence is filed or the time to file a Reply expires).
  • Counterclaims, crossclaims, and third party claims - A defendant may advance its own claims against the Plaintiff(s) by delivering a counterclaim. A defendant can also advance claims against another defendant in the action by delivering a crossclaim. A claim against another person or entity that is not already named in the lawsuit may also be advanced by a Defendant upon delivery of a third party claim. These claims must be defended after service within the timeframes set out above for delivery of a Statement of Defence.

  • If a claim is not defended, a Plaintiff may proceed to default judgment. In simple cases, this may be done by filing a Requisition for Default Judgment with the Registrar of the court. In more complex cases, it may be necessary to proceed before a Judge with a motion for default judgment, at which proof of the allegations in the Statement of Claim must be tendered.

Once all pleadings are in place, the next step in an Ontario civil lawsuit involves documentary disclosure - the delivery and exchange of Affidavits of Documents and the production and disclosure by all parties to each other of all relevant documents and information that relate to the issues in the litigation.

Under the Ordinary Rules, parties are at this stage also entitled to examine each other under oath in a process known as Examination for Discovery. Examinations for Discovery are not permitted, ordinarily, in Simplified Rules proceedings

We'll be discussing discovery and documentary production in our next installment. In future installments we'll also be addressing:

  • Motions
  • Mediation
  • Pretrials
  • Settlements
  • Trials
  • Costs
  • Appeals
  • The Family Law Rules

Finally, we'll be providing what we feel will be a most important conclusion to this series, our upcoming article, "To Sue or Not To Sue."

That article will look at the practical and economic considerations involved in proceeding with a lawsuit in Ontario, including a frank look at what courts can - and cannot - typically do for litigants in the Province.

- Garry J. Wise and Shashi K. Raina, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Landlord May Butt Out Smoking Tenant: Ontario Landlord & Tenant Board

In a ground breaking ruling issued February 25, 2008, Ontario's Landlord and Tenant Board has enforced a non-smoking provision in a residential lease, and upheld the right of residential landlords to prohibit smoking in the Province's rental accommodations.

In its decision, the Board ordered the tenant of a luxury, short-term Toronto rental unit to pay his landlord compensation of $10,000.00, after the tenant was found to have repeatedly allowed smoking in the unit, in violation of a no-smoking clause in the unit's lease.

Board Member Egya Sangmuah enforced the no-smoking provision, and ruled that "the persistent smell of cigarette smoke would constitute damage to rental premises" under the Province's Residential Tenancies Act.

He ordered the tenant to pay the landlord's costs of repainting, carpet-cleaning, reupholstery and furniture and linen replacement necessary to restore the unit and its contents to a smoke-free condition.

The Landlord, Christine Celuba, was in the business of renting luxury rental units to executive clients, who typically sought short-term, smoke-free accommodation. In December 2006, after reports from the unit's cleaners, Ms. Celuba became aware of a persistent smell of cigarette smoke in the tenant's unit.

She made several, unsatisfied requests of the tenant that smoking cease in the unit, and ultimately brought an application to the Board seeking termination of the tenancy, and compensation for damage caused by smoking to the unit.

She alleged that as a result of unauthorized smoking:

  1. [The tenant] or another occupant of the rental unit or someone he permitted in the residential complex has wilfully or negligently caused undue damage the premises; and,
  2. [The tenant] or another occupant of the rental unit or someone he permitted in the residential complex has substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant.

After a four-day hearing, the Board found that the Residential Tenancies Act "is broad enough to include furnishings within the interpretation of “rental unit,” and ruled that the non-smoking provision in the unit's lease was lawful and enforceable.

Board Member Sangmuah ruled:

I agree that it is lawful to include a no smoking clause in a rental agreement. I do not know of any public policy that is against putting no smoking clauses in tenancy agreement. The Act contemplates tenancy agreements and provides for their enforcement. Sections 14 and 15 of the Act specifically prohibit no pet clauses and acceleration clauses but, for the most part, the contents of tenancy agreements are left to the parties. No smoking clauses are neither expressly prohibited by the Act nor contrary to the Act”

In assessing whether damages may be awarded for the lingering smell of cigarette smoke, the Board relied on section 62(1) of the Act and concluded that the availability of compensation must be considered within the “purpose for which the rental unit was intended to be rented.” The Board found that the smell of smoke indeed did constitute damage to the rental unit, in view of the landlord's target clientele of executives seeking non-smoking accommodation.

The Board summarized its findings as follows:

In light of the findings above, the Landlord has established that the Tenant caused damage to the furnishings in the rental unit by permitting smoking in the unit. Such damage is not normal wear and tear and is due to the negligence of the tenant. By permitting smoking in the unit, the Tenant also substantially interfered with the right of the Landlord to engage in and protect her business of renting furnished luxury accommodations to a wider clientele of non-smokers.

,,,The total amount of compensation due is $10,958.85. The board's monetary jurisdiction is $10,000.00. Thus the Landlord can only recover $10,000.00 from the Tenant as compensation for wilful or negligent damage to the rental unit or substantial interference with the Landlord's lawful right, privilege or interest.

In addition the Board awarded one further month’s rent to compensate the landlord for lost rental revenue during the renovation and restoration of the rental unit.

The Board's complete decision is here.

- Garry J. Wise and Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Overlawyering Spitzer

I was pleased to see that we received a visit from Overlawyered's Walter Olson over the weekend. He was good enough to make a digital trek north of the border to comment on a post I wrote last Tuesday.

Mr. Olson and I have disagreed occasionally in the past, but at the outset I will reiterate my prior comment that Overlawyered is, indeed, one of the premier and most readable law blogs in America. Readers who are not familiar with it should definitely have a look.

Niceties aside, it emerges that Mr. Olson was none to pleased with my March 13 post, On Eliot Spitzer, Briefly, which addressed the downfall last week of New York's former Governor.

Mr. Olson commented at that post:

Let's see. Here you have a New York governor who crusaded for and signed into law "the toughest and most comprehensive anti-sex-trade law in the nation", which specifically raised the prison terms applicable to the workaday "johns" who patronize prostitutes. And you also have the most celebrated white-collar prosecutor of his era, charged with engaging in violations of the same money-laundering laws that he himself invoked in obtaining convictions. As NYC criminal defense attorney/blogger Scott Greenfield points out, "the government regularly prosecutes 'little people' for money laundering violations. It happens all the time": http://blog.simplejustice.us/2008/03/13/spitzer-aftermath-what-to-expect.aspx

So far, so good.

No argument here - Eliot Spitzer was clearly guilty of the crime of hypocrisy. He has been hoisted on his own petard, and by any karmic analysis, I suppose there is some measure of poetic justice there.

I am not inclined to the belief, however, that the role of the U.S. Justice Department is to mete out poetic justice. Nor am I of the view that it good public policy to over-criminalize sexual misdemeanors through money-laundering legislation that purports to address significantly more serious matters.

If it was wrong that such laws were zealously over-engaged by Spitzer against his prosecutorial targets, as Mr. Olson clearly implies, I do not see it as less wrong that the same approach has been used to so summarily disgrace and unseat an elected state Governor.

Mr. Olson's commentary continues:

And the best you can think of is to call the revulsion that drove Spitzer from office a "political lynching by the Monica brigade"? I hope it does not pass for progressive thinking in your country to defend high officials who consider themselves above the laws with which they trample others; if anything such an attitude sounds to me more like the sort of royalist streak that I thought Canada had left behind.

I'm not sure what Her Majesty - although she's a pretty nice girl - has to do with it, but I hope you will forgive me for noting that I have at no point defended Governor Spitzer. That was not the subject matter of my comments.

Rather, I queried, as did other writers subsequently, whether there was any evidence of misappropriation of public funds by the Governor in his exploits. Now, that would indeed be a very serious, criminal matter.

In the absence of such evidence - or even allegation of misuse of public funds to that time - I noted the rampant salivary droolings of certain legal pundits, as they so eagerly combed through obscure statutes, in pursuit of additional, major crimes with which to possibly charge the Governor in connection with this rather run-of-the-mill and unremarkable political scandal.

(That's unremarkable, by Larry Craig standards, anyways).

In my original post, I characterized this pile-on as a pursuit of "overcharges" against Governor Spitzer.

And with apologies to my friend Walter Olson, it is my view that lawyers who embrace such overcharging with such obvious zeal might be properly be accused of, dare I say it...

Overlawyering.*

(* And welcome to Overlawyered readers)

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Sunday, March 16, 2008

Riders' Petition Rejected by Go Transit

GO Transit, which serves approximately 50 million commuters throughout the Greater Toronto Area a year, has rejected a petition by riders calling for fare rebates when service falls short.

The petition, delivered by Patricia Eales of Oakville, contained close to 11,000 names calling for the transit company to offer rebates to passengers on GO trains running more than 20 minutes late, or not arriving at all. It also demands elimination of a 15 cent per fare increase which took effect on March 14, 2008.

The Toronto Star reports:

They listened, but Pat Eales isn't convinced GO Transit's board of directors heard the deafening hue and cry of frustrated commuters demanding better service and a refund when trains are late.

"They just kept bringing up the same old excuses – the weather, the switches – and that it wasn't their fault," the Oakville mother of two said after tabling copies of an online petition at yesterday's board meeting, supported by almost 11,000 dissatisfied riders.

...But her requests fell on deaf ears. A 15-cent-per-ride fare increase on a single adult ticket goes into effect today. Board chair Peter Smith confirmed there will be no refunds, something he said would spell disaster for the system in the throes of a major expansion.

GO Transit relies on the fare box for operating funds, so essentially riders themselves would be picking up the cost of the refunds.

On a positive note, after rejecting the petition, the Board's chairman - Mr. Peter Smith, made promises to GO Transit passengers to improve the transit service.

The National Post reports:

Mr. Smith said Ms. Eales has had a “huge impact” on efforts to immediately improve the service’s reliability. GO has already responded by posting on its Web site the “departure boards” that are found in Union Station that give train and bus updates.

Yesterday, the board approved a three point plan that endorsed hiring a 15th board member, who would focus on customer service, establish a customer service advisory committee and an action plan to address many of the concerns Ms. Eales raised.


For her part, Ms. Eales said she will take her petition to the provincial government next, hoping to further improve the GO Transit commute.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

B.C. Teacher Regulator Warns About Facebook

Should school teachers friend their students on Facebook?

The British Columbia College of Teachers tackles this question in a statement, Facing Facebook, that warns the Province's teaching professionals of "fairly significant risk" to professional boundaries posed by teacher participation on Facebook:

...Blurring the boundaries

While there is nothing wrong with teachers using Facebook in their personal lives, Facebook does expose both teachers and students to fairly significant risk when it comes to respecting the boundaries between educator and student.

...Breaking down the walls between a teacher’s personal and professional life can undermine a teacher’s authority and create a significant danger zone for both teacher and student. An educator’s ability to maintain boundaries within the professional relationship ensures a safe connection based on the student’s needs. A safe relationship is threatened when the boundaries become blurred or ambiguous, particularly when dual relationships are created. In these cases, the teacher moves beyond a professional relationship into the personal realm.

Facebook makes it much easier for dual relationships to thrive. Teachers that would never take a child to lunch or offer to drive a student home (other types of potential boundary violations) may not even hesitate to add a student as a “friend” on Facebook, exposing the student to personal information that the teacher would never consider sharing in a classroom setting. As an educator, you need to be aware that this is happening with increasing regularity, placing students and educators at risk.

... Of course, Facebook itself isn’t the problem. It is simply one of many web applications that are transforming how we communicate. Larger philosophical debates – about privacy expectations, the line between the personal and the professional, and the coming generational change that will affect the way we work and interact with each other – need to occur in both the profession and the society at large. What will never change, however, is the responsibility of an educator to ensure the safety of students is protected – both in the classroom and online.

The British Columbia College of Teachers is the professional self-regulatory body for more than 67,000 licensed educators in British Columbia. It sets standards for professional educators, issues teaching certificates, and where necessary, reviews conduct and competence matters.

- Garry J. Wise, Toronto

.....

Is Facebook Fading?

It’s an ongoing topic on our blog, and I still frequently hear people referring to it regularly, but is the craze of Facebook beginning to fade?

CTV.ca reports:

Statistics showing a decline in U.K. Facebook use have led to predictions the social networking site's golden age may soon come to a close. But don't believe the hype, say industry experts, the Facebook frenzy is still going strong -- especially in Canada.

The United Kingdom experienced its first drop in Facebook users in January after a 17-month uphill climb, according to research firm Nielsen Online. Its study showed unique users were down to 8.5 million from 8.9 million in December.


About 20,000 fewer Canadians visited the site during the same period, but that doesn't mean they've had enough networking, experts say.


…January 2008 was the first month in the past year that Facebook did not increase its Canadian user base significantly. Back in January 2007, the site had 3.3 million users, compared to a whopping 15.3 million users a year later.


It is long-term statistics like these that really show trends, said Lipsman, noting that while Canadian stats for February have not been tallied yet, U.S. figures are showing a continued increase in users per day.

It makes sense that after a year of strong, increasing popularity, Facebook use was bound to eventually decline.

That certainly doesn’t mean the Facebook frenzy is over.

With ongoing controversies, new site developments in the works, and a sticky user loyalty to the site that has reinvented social networking, I believe Facebook will continue to maintain its popularity- at least until something bigger and better comes along.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Proposed Mississippi Bill: Restaurants not to Serve Obese People

Last month, three Mississippi lawmakers introduced a bill that would prohibit “obese” people from being served in Mississippi restaurants.

Understandably, the proposed law has created serious backlash, and the bill’s authors are now backtracking, claiming their intention was to bring attention to the obesity problem in Mississippi, rather than enacting the controversial law.

The Associated Press reports:

A state lawmaker wants to ban restaurants from serving food to obese customers - but please, don't be offended.

He says he never even expected his plan to become law.

"I was trying to shed a little light on the number one problem in Mississippi," said Republican Rep. John Read of Gautier, who acknowledges that at 5-foot-11 and 230 pounds, he'd probably have a tough time under his own bill.

More than 30 percent of adults in Mississippi are considered obese, according to a 2007 study by the Trust for America's Health, a research group that focuses on disease prevention.

The state House Public Health Committee chairman, Democrat Steve Holland of Plantersville, said he is going to "shred" the bill.

"It is too oppressive for government to require a restaurant owner to police another human being from their own indiscretions," Holland said Monday.

Of all the numerous and creative ways that are available to “shed a little light” on this ongoing public health concern, I can think of few that are as offensive and discriminatory as this attempt.

Thumbs down, Reprensentative John Read.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Lawmaker Hopes to Make Anonymous Blogging Illegal

In an effort to address the ongoing problem of online bullying, Kentucky representative Tim Crouch is attempting to introduce a bill that would make it illegal to post anonymously online.

Lexington, Kentucky's WTVQ News reports:

The bill would require anyone who contributes to a website to register their real name, address and e-mail address with that site. Their full name would be used anytime a comment is posted.

If the bill becomes law, the website operator would have to pay if someone was allowed to post anonymously on their site. The fine would be five-hundred dollars for a first offense and one-thousand dollars for each offense after that.

…Representative Couch says enforcing this bill if it became law would be a challenge.

- Annie Noa Kenet, Toronto

........

Note: Given the ample First Amendement protections afforded online anonymity by U.S. courts to date, it is had to imagine how this Bill, if passed, could survive a consititutional challenge.

For more see:

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Saturday, March 15, 2008

Migrating Same-Sex Marriages in America: "Betwixt and Between"

Professor Brenda Cossman of the University of Toronto's Faculty of Law Blog has a new paper on the gap between the legal and cultural recognition of same-sex marriage in America.

Focusing on the uncertain legal status of same-sex spouses who migrate to, and throughout, America, Betwixt and between Recognition: Migrating-Same-Sex Marriages and the Turn Toward the Private reviews the applicability of conflict of laws principles to judicial determination of the legal status of migrating spouses.

It also nicely canvasses American jurisprudence that has led to the current question marks about the recognition by U.S. state courts of same-sex marriages solemnized elsewhere.

Professor Cossman notes that, to date, many U.S. state courts have have declined to favour recognition:

A glance at the scoreboard in these admittedly early days of migrating same-sex marriage cases suggests that the obvious trend is one of nonrecognition. The courts are overwhelmingly taking the position that if their states do not recognize civil unions or same-sex marriage, then they will not recognize Vermont, Massachusetts, or Canadian unions.

She argues, however, that irrespective of the ultimate verdicts in these cases, judicial processes have offered some measure of social legitimacy to same sex unions. She notes that simply by considering these cases, courts have enabled such unions to enter the lexicon of the culturally "speakable"

The writing of the paper appears to have predated last month's landmark decision in Martinez v. Monroe.

In Martinez, a New York State appellate court in Rochester recognized a Canadian same-sex marriage as legally valid in the state. That appellate ruling, however, is now subject to further appeal by Monroe County.

Regrettably, however, this otherwise informative and scholarly paper also veers somewhat gratuitously, and perhaps, objectionably.

For no apparent reason that appears germane to her central thesis, Professor Cossman also contends:

There are many parallels between same-sex marriage and polygamy. Polygamy has long been one of the bogeymen of the law of conflicts. The law of recognizing marriages celebrated abroad has often been articulated to specifically disallow the recognition of polygamous marriages. Although the general principle was one of place-of-celebration, that is, a marriage was recognized as valid if it was valid in the place where it was celebrated, an exception was made for polygamy. Polygamy long operated as a trope of the public-policy exception to the common-law place-of-celebration rule, deployed to justify, in the most obvious way, the need for such an exception.

Today, it is same-sex marriage that is occupying this trope, becoming the new bogeyman in the law of conflicts. Indeed, it arguably occupies an even more ominous space, since same-sex marriage has been legalized in one state in the Union, and civil unions have been recognized in several others.

Yet the shadow of polygamy lingers, now in the guise of a slippery slope: same sex marriage becomes the obvious example of the need for a public-policy exception—“if it is not a legitimate exception, what is?”—leading in turn to the fear of the ultimate trope -polygamy. Opponents to same-sex marriage repeatedly raise the slippery-slope argument: that its recognition will lead inexorably to recognizing polygamy and other abominations, like incest and bestiality. Conversely, as liberal scholars seek to make the case for the interjurisdictional recognition of same-sex marriage, they, too, must negotiate this slippery slope. But they do so through denial, avoiding the association like the plague and insisting that the monogamous nature of marriage can, and will, hold. (emphasis added).

With due respect to the good Professor, I am quite comfortable with the noted tendency of "liberal scholars" to avoid dealing with the "association" of same-sex marriage to polygamy, incest and bestiality.

By any rational standard, there are no such associations.

Reiteration of these tired "slippery slope" arguments may well afford to them an unwarranted cultural "speakability." The suggestion that such canards continue to require any rebuttal at all is essentially false.

Professor Cossman's ultimate conclusions, however, remain astute:

The courts may be deploying conflicts-of-laws in a kind of border patrol, refusing legal passage, yet they cannot prevent its seepage into the cultural imagination on the other side brought on by each of the legal challenges. These migrating-marriage cases challenge the traditional confines of doctrinal or policy approaches to conflicts, suggesting that we cannot fully grasp this strategic turn toward the private without attention to these contestations, deferrals, and reversals of cultural meaning.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Clinton Supporter at Daily Kos: "This Is A Strike"

There is no doubt - some Democratic feathers are getting badly ruffled as the nomination battle between Senators Clinton and Obama increases in heat.

Some contributors at the flagship progressive blog, Daily Kos, now say they have had enough - enough, that is, of the ongoing 'Clinton-bashing' they claim to have encountered at the site.

One such writer, who goes by the pen-name Alegre, is now "on strike:"

I’ve been posting at DailyKos for nearly 4 years now and started writing diaries in support of Hillary Clinton back in June of last year. Over the past few months I’ve noticed that things have become progressively more abusive toward my candidate and her supporters. I’ve put up with the abuse and anger because I’ve always believed in what our on-line community has tried to accomplish in this world. No more. DailyKos is not the site it once was thanks to the abusive nature of certain members of our community.

...Sadly, the majority of the administrators have allowed this hostile environment to develop in our online community for anyone who isn’t planted firmly in the Obama camp. They’ve routinely ignored personal attacks and allowed disruptive, spam-like posts to go unchecked whenever anyone expresses support for Hillary or challenges something their candidate has said or done. There are however several front-pagers who have managed to avoid taking part in the attacks on Hillary and for that I’m grateful. But the site has grown to the point where they simply can’t - or won’t monitor it.

As a result, our community has become little more than an echo chamber with an attitude that harkens back to the early days of Dubbya’s administration - yer either with us or yer a’gin us, heh! The attackers and disrupters are no better than Chris Matthews with their sexism, hate, lies, and obsession with bashing - all - things - Hillary.

I don't read Kos much, so I can't comment on that site's current atmospherics. I have observed, however, that it has become quite unfashionable in much of the U.S. liberal blogosphere to be a supporter of Mrs. Clinton.

Some leading, progressive blogs seem very much to have involved themselves in a Rovian game of gotcha against the Senator from New York. The result has been a noticeable drop in the overall readability, quality and credibility of these sites.

Is it really now impossible to have a civilized, principled debate about the candidates on these blogs? If so, that is not a harbinger of good things ahead.

Frankly, I suspect the polarization we are are seeing is going to get worse before it gets better.

Quite a bit worse.

.......

UPDATE: March 16, 2008

Slowly, this story is going national.

See: Update on DailyKos Writers Strike from Alegre.

And welcome to MyDD readers.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Friday, March 14, 2008

Surprising Primary Statistics

Interesting stats and analysis from MyDD.

Among Democratic primary voters, Hillary Clinton leads in the popular vote by 52% - 48%.

Barack Obama is ahead 59% - 41% among both independent and Republican voters who have participated in the Democratic primaries.

MyDD says:

What is troubling is the large influence voters who are not Democratics have on the Democratic Nomination for President.

On a personal level I believe Democrats should choose the Democratic nominee for President

Also see Seeing the Forest's Which Dem Has More Votes?

AMERICABlog crunches some other numbers, and delivers its own mathematical intrigue:

A recent PEW poll shows that 10% of Democrats who support Obama would defect and vote for McCain should Hillary become the candidate. But, a whopping 25% of Democrats who support Hillary would defect and vote for McCain should Obama become the candidate.

(By the way, I don't know if it is just me, but doesn't it look like that Democratic donkey in the new party logo is galloping downhill? Interesting symbolism...)

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Thursday, March 13, 2008

Stephen Harper v. The Liberal Party of Canada

The Prime Minister has made good on his promise to sue the Liberal Party of Canada.

Yesterday, he initiated a lawsuit against his political adversaries over their allegations that he knew of financial inducements allegedly offered by the Conservative Party in 2005 to Chuck Cadman, a deceased, former member of Canada's Parliament.

Harper filed a 32-page Statement of Claim in Ontario Superior Court of Justice at Ottawa, naming the Liberal Party of Canada and others as Defendants.

The Prime Minister claims damages totalling $2.5 million for defamation over the February 29, 2008 publication on the Liberal Party of Canada website of an article entitled "Harper Knew of Conservative Bribery."

The claim alleges that the Prime Minister's reputation was harmed by the article, along with subsequent articles on the Liberal Party website and related statements by Opposition Leader Stephane Dion and other Liberal Party officials.

The Prime Minister claims that "as a result of the defamatory publications in issue... he has been brought into ridicule, scandal and contempt both personally and as the holder of the Office of Prime Minister of Canada."

The Prime Minister did not sue Mr. Dion or other Liberals personally.

Once the Defendants have been personally served with Prime Minister's Statement of Claim, each must file a Statement of Defence within 20 days. A 10 day extension of this deadline may be obtained by any Defendant who delivers a short pleading known as a Notice of Intent to Defend.

None of the Prime Minister's allegations have to date been proven in a court of law

More background on the Cadman affair, or Cadscam, is here.

We will be following this litigation very closely.

Interesting questions: If the Conservative Party is defeated in the next election, will Plaintiff Harper blame it all on Cadscam and argue that he is entitled to damages for loss of the Prime Ministership? How would those damages be quantified by a Court?

And... who says you can't do one blog about law and politics?

More reading:

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

"Ashley's Treatment"

Born with an undiagnosed severe brain injury, at 9 years old Ashley has the mental capacity of a 6-month-old. She is entirely dependent on her parents. She cannot walk, eat, talk, bathe or roll over on her own.

Concerned about the effects that puberty would have both on their child’s comfort and their future ability to care for Ashley, Ashley’s parents – who remain anonymous- began researching what they have coined as “Ashley’s Treatment” a combined surgical procedure and estrogen treatment with a goal of preventing Ashley from experiencing the regular effects of puberty including physical growth, menstrual cycles and breast development in the hopes of “enhancing her quality of life”

In May 2004, Ashley’s parents presented Ashley’s Treatment to the Seattle Children’s Hospital ethics committee. About 2 months later, a surgery that included a hysterectomy, appendectomy and the removal of breast buds was performed on Ashley. She was 6 years old. Following the procedure, Ashley was given estrogen therapy for approximately 2 years to stunt her height growth.

Though a radical procedure, Ashley’s Treatment received little publicity at the time it was performed. It was not until October 2006 when Dr. Gunther and Dr. Diekema published the treatment in a medical journal that this matter began to receive worldwide media attention. In response, Ashley’s parents found a medium where they could both remain anonymous, and address questions and concerns respecting Ashley’s treatment on their own terms. Ashley’s parents started a blog. Proving everything from updated pictures of Ashley to providing a breakdown of the positive and negative emails they receive from readers, the blog serves as an opportunity for them to explain this highly controversial medical decision.

Understandably, Ashley’s Treatment is a largely contested issue between ethicists, the medical and legal profession, disability groups and families/parents of other children such as Ashley.

CNN reports:

It's been a year since the parents of a severely disabled child made public their decision to submit their daughter to a hysterectomy, breast surgery and drugs to keep the girl forever small. Today, the couple tell CNN, they believe they made the right decision -- one that could have a profound impact on the care of disabled children worldwide.

…While the "Ashley treatment" was first published in the October 2006 issue of the Archives of Pediatrics & Adolescent Medicine, it wasn't until the family posted its blog last year that a firestorm erupted in the blogosphere, with responses from "inhumane" and "perverse" -- to "walk in our shoes."

"If parents of children like Ashley believe this treatment will improve their children's quality of life, then they should be diligent and tenacious in providing it for them," her parents write. "We have a sacred duty to do what we believe is right for our children." But in Ashley's case, what her parents thought was right wasn't legal.

In May 2007, Children's Hospital admitted it broke state law by giving Ashley a hysterectomy without a proper court review. To perform any such treatment today would require a court order, as well as review by a panel of experts in medicine and ethics and people with disabilities, says Dr. Douglas Diekema of Treuman Katz Center for Pediatric Bioethics, the consulting ethicist on Ashley's case.

…Another complicating factor -- some doctors remain adamant the treatment shouldn't be available.

CNN's interview with Ashley's parents is here.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Wednesday, March 12, 2008

Chris Matthews Plays Softball with Obama

Chris Matthews, MSNBC's self proclaimed king of Hardball, went awfully soft on Democratic front-runner, Barack Obama, in a televised, live interview last night.

Go figure. Perhaps there were ground-rules.

Nonetheless, not a shining moment for Mr. Obama, in the aftermath of his Mississippi primary win.

The video is here.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Ryerson University Holds Facebook "Cheating" Hearing

In our post last Saturday, Facebook "Study Group" Leads to Ryerson "Cheating" Allegations, we reported on the case of Chris Avenir.

Mr. Avenir is an 18 year-old student at Toronto's Ryerson University who faces possible expulsion over charges of cheating that arose from his role as administrator of a chemistry "study group" on Facebook.

Yesterday, an academic misconduct hearing into the matter was conducted at Ryerson.

According to news reports, Mr. Avenir and his lawyer, John Adair, were in attendance at a ninety minute session before the University's Engineering Faculty Appeals Committee, in which he maintained his position that he, and the online study group, had done nothing wrong.

At issue is a request on the study group's page asking students to post their solutions to assigned chemistry problems. The group's main page stated, "If you request to join, please use the forms to discuss/post solutions to the chemistry assignments. Please input your solutions if they are not already posted.”

An instructor who had requested that students work independently filed the complaint, suspecting that students were indeed sharing their assignment solutions online.

As CityNews reports, many of Mr. Avenir's fellow students appear to be in his corner:

... Avenir's case is being watched extremely closely by other students and school administrators, as it promises to be precedent-setting. Those supporting the Ryerson student agree that talking about schoolwork on Facebook is no different from study groups that work on homework or cram for tests together outside class.

"It's the exact same thing. The only difference is it's online. You know, there isn't a massive bust-up of study groups in our library or anything like that," noted Ryerson's Student Union President Nora Loreto. "Actually in engineering, most engineering students will say that they really got through by being able to actually have help from their classmates, because it's a very collaborative program."

Avenir was quick to second those sentiments. "The only real reason that I think it's getting the attention that it is getting is because it is on Facebook," he insists. "It's a pretty new technology and that the school hasn't really adopted yet."

Other students were quick to support their peer.

"To be honest I'm kind of disappointed, "said Ryerson student Lyndsay Morrison. "Personally I don't see how it's any different from sitting around the library and having a discussion."

According to the Ryerson campus newspaper, The Eyeopener, however, some students disagree:

The president of the engineers' student group maintains Avenir committed academic misconduct for administrating a Facebook group in which students exchanged notes and answers.

"It seems unfair to everyone who would have worked on that assignment on their own," said Griffith d'Souza, president of the Ryerson Engineering Students' Society.

Commenting in the Toronto Star, Fred Stutzman, a "doctoral student of social networks," suggested the University's actions could have a chilling effect:

What Facebook has changed, said Fred Stutzman, a doctorate student of social networks at the University of North Carolina, is the open record it leaves, making it easier to gather evidence of academic dishonesty. “

Cheating is cheating and collaboration is collaboration. Because there’s a virtual environment, that doesn’t change the definition of any of these constructs that we’ve written into law or society,” Stutzman said from Chapel Hill, N.C.

“The problem here is that this is going to have a serious chilling effect on these very interesting opportunities for learning and collaboration that the virtual environment affords.”

A decision is required within five days. Mr. Avenir may appeal to the University's Senate if the outcome is unfavourable to him.

It is a fascinating debate. Let us hope that the answers ultimately achieved do not come at the expense of Mr. Avenir's academic career and future.

Mr. Avenir is right. His Facebook group's conduct was not demonstrably different in substance from the typical, accepted collaborations that have occurred in libraries and personal study groups since universities were invented.

Such collaborations now, quite naturally, also take place online. Because they can.

The "digital study hall" offers genuine benefit to all students; beyond that, it is likely to the specific advantage of students with certain disabilities and to those who are simply uncomfortable in group study environments.

The world changes.

Universities are supposed to be ahead of the curve.

Apparently, Ryerson is not.

It is no surprise that Mr. Avenir is shocked by these charges, and feels they came from left field.

They did.

Neither he, nor any of the other 146 students in the online chemisty study group have committed any offence other than modernity. They have no moral turpitude whatsoever.

Should Ryerson, in the future, wish to draft and adopt a specific policy in writing as to the do's and don'ts of online study collaboration, it of course may do so.

Absent such a policy, students should not be left guessing.

And they should not be singled out for breaking unwritten rules that have not previously been stated.

As the website says, Chris didn't cheat.

........

More reading:

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Tuesday, March 11, 2008

Tasered Utah Man Wins $40,000 Settlement

Mike Nizza of The Lede reports that Jared Massey, a Utah man whose roadside tasering went viral on You Tube, has settled his damages suit with the Utah Highway Patrol for $40,000.00.

A taser was fired twice at Mr. Massey by a highway patrol officer after the Utah driver refused to sign a speeding ticket.

The deal was announced a week after a Utah prosecutor ruled the Mr. Massey did not commit any crimes in the traffic stop, according to The Salt Lake Tribune. His civil case focused on the fact proven in the video — that the officer did not seek to arrest him before drawing and firing the Taser.

The video has been seen 1.75 million times on You Tube:



- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Gilligan's Mary Ann... Busted!

Last year, it was those scandalous stories about Marcia and Jan.

Now, CNN reports that Mary Ann has been busted.

Where will it end?

If only James Curran knew...

(By the way, is it impolite to note that "Mary Ann" is now 69 years old?)

- Garry J. Wise, Toronto

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EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Congratulations

Congratulations to all the Canadian law bloggers who made writer Gerry Blackwell's top ten list, published in this month's edition of Canadian Lawyer magazine.

His picks "in no particular order" (as he put it) are:

Michael Geist · Law21 · Law Firm Web Strategy · eLegal · SLAW · The Bizop News · Toronto Estate Law Blog · Law is Cool · Library Boy · Rule of Law

I regularly read many of these blogs, and they are indeed, fine selections. I'll add the following as more than deserving to be on any list of Canada's best of the best:

Cavanagh Williams · Rob Hyndman · Connie Crosby Law Librarian Blog · Andrew Feldstein's Blawg · Thoughts from a Management Lawyer · Toronto Employment Law Blog · The Court

- Garry J. Wise, Toronto

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EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

On Eliot Spitzer, Briefly

While much of the U.S. media and various American law bloggers virtually fall over themselves to stretch for creative angles as to the various state and federal offenses New York Governor Elliot Spitzer could be overcharged with, after the explosive revelation of the Governor's liaisons with professional escorts, I have only one question:

Did he use any public money when he dunnit?

If not, this isn't much of a story at all.

It's just another political lynching by the Monica brigade.

....

UPDATE:

Predictably, Mr. Spitzer has now resigned as New York's Governor:

UPDATE - March 14, 2008:

UPDATE - March 15, 2008:

  • "Kristen" lawyers up: "we feel constrained to put the media on notice that as counsel for Ms. Dupré we will take all steps that we deem necessary or appropriate to protect Ms. Dupré from any unwarranted exploitation of her name, picture, voice or likeness for purposes of profit.” - Lawyer for “Kristen” Scolds Media Over Photos - WSJ Law Blog

Update - March 16, 2008

  • Tough questions for the Justice Department from lawyer Scoot Horton at Harper's Magazine: "...there is a second tier of questions that needs to be examined with respect to the Spitzer case. They go to prosecutorial motivation and direction. Note that this prosecution was managed with staffers from the Public Integrity Section at the Department of Justice. This section is now at the center of a major scandal concerning politically directed prosecutions... The Justice Department needs to submit to some questions about how this probe got launched, who launched it, and to what extent political appointees were involved in its direction. This has nothing to do with Spitzer’s guilt or innocence. But it has everything to do with the fading integrity of the Public Integrity Section." See: The Spitzer Sex Sting: A Few More Questions

Update - March 17, 2008

  • Shankar Vedantam of the Washington Post looks at the medial orbitofrontal cortex and the "price-placebo effect" in considering whether Governor Spitzer got his "money's worth." See: Eliot Spitzer and the Price-Placebo Effect

Update - March 19, 2008

- Garry J. Wise, Toronto

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EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Are Facebook "Background Checks" by Prospective Employers Legal?

Carole Elefant at Legal Blog Watch discusses the legality of the increasing use by prospective employers of Facebook "background checks" in their employee recruitment:

...[F]or those employers who can't resist peeking at social networking sites, Jennifer M. Bombard, an attorney with Morgan, Brown & Joy, recommends that they document a "legitimate business rationale for rejecting applicants" and make sure that hiring decisions are not motivated by information found on an applicant's social networking site. Yet even with these prophylactic measures, a discrimination case will be "more problematic to defend" where an employer admits to having looked at a social networking site, says Gerald L. Maatman Jr., an attorney with Seyfarth Shaw.

...If employers want to review social networking profiles to get a sense of what a potential employee is like, I say let them (so long as they don't use the information to unlawfully discriminate against protected groups). But first, require them to disclose the practice to job applicants and employees. Just as the information that we post on Facebook says something about us, employers' use of Facebook to ferret out personal information about prospective or current employees conveys a lot about them.

According to the article, "44% of employers use social networking sites to examine the profiles of job candidates, and 39% have looked up the profile of a current employee."

As far as I am aware, there is absolutely no evidence whatsoever of any correlation between the salaciousness of an individual's Facebook content and that individual's prospective employment performance.

This recruitment practice is simply snoopy and gossipy and prurient and irrelevent.

It sheds no light at all on job-worthiness or skill sets. It leaves employers highly vulnerable to accusations and inferences of discriminatory hiring practices. It is unlikely to yield any measurable improvement in workplace productivity.

Beyond that, this form of online corporate stalking probably favours only those candidates who are smart (or sneaky) enough to cover their tracks by deleting all the "interesting" stuff, while also being reckless enough that they don't bother to adjust their Facebook privacy levels to restrict uninvited access while they are job-hunting.

Is that really who you want to be hiring?

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Monday, March 10, 2008

Fired or Resigned or Not Too Sure at All

Supreme Court of Canada Declines to Weigh In On Parties' Duties in the "Employment Status Grey-Zone"

When the Supreme Court of Canada dismissed his late client's application for leave to appeal last month in Britton v. Partners Graphic Support Service & Supply, employment lawyer Andrew J. MacDonald arrived at the disappointing end of a long litigation road.

In pursuing this employment law case to Canada's highest Court, Mr. MacDonald had been fueled by a promise he made to his now-deceased client, Joan Britton, the last time he saw her.

"She believed she was right," Mr. MacDonald, of Toronto firm, Markson Macdonald said, shortly after the Supreme Court's February 28, 2008 ruling.

"When my client became ill with cancer, she asked me to continue with her case, and I agreed I would."

Ms. Britton had commenced a long, stable tenure with the Defendant, Partners Graphic Support Services in 1993. Graduating to a senior administrative role, she earned approximately $54,000.00 per annum. In April, 2003, however, upon retuning from a vacation, Ms. Britton soon found herself in a workplace no-person's land, in which the status of her employment suddenly became murky and undetermined.

In Ms.Britton's absence, her sister, who had also been employed by the company, had been terminated after acknowledging misconduct. The employer suspected Ms. Britton of involvement in her sister's wrongdoing. Two confrontational meetings between Ms. Britton and her employer followed in early April, 2003. The second meeting, on April 3, culminated with Ms. Britton's refusal to sign a letter of resignation that had been prepared for her signature by the employer's solicitors.

When she left the workplace, she had not explicitly been terminated. She had not resigned. She had not been told she should return to her position, nor had she been advised she could not.

On April 3, 2003, she corresponded by email with her employer to arrange at time to pick up her personal belongings from the workplace. She was told the following weekend would be acceptable. Unsatisfied, on April 4, 2003, she again emailed her employer, saying "Please verify what is the status of my employment." Her employer did not respond.

Ten days later, Ms. Britton alleged through counsel that she had been dismissed, or alternatively, constructively dismissed. She commenced legal proceedings shortly thereafter, claiming damages for wrongful dismissal and additional Wallace damages for bad faith by her employer in the conduct of the dismissal.

By the time of trial in February 2006, however, Ms. Britton had succumbed to her illness, and trial proceeded in her absence.

At trial, Mr. Justice H.J.W. Siegel concluded "reluctantly" that the employer's actions, while insensitive, constituted neither dismissal nor constructive dismissal.

In an unreported decision, the Court found that Ms. Britton had not been legally entitled to assume or extrapolate from the circumstances that she had been terminated.

Rather, the Court squarely placed the onus upon the Plaintiff to demonstrate conclusively that she had not resigned, even in the face of the request for resignation by her employer.

Mr. Justice Siegel wrote in his decision:

I do not believe [the employer] had an obligation... to seek Britton out after she left work on April 2, 2003 to ascertain whether she wished to return to work, despite her refusal to sign the voluntary resignation letter. Having left the office for the day, Britton had the obligation to return to work or to contact [her employer].to indicate her desire to do so. Had she indicated, as late as early the following week that she wished to return to work, I believe the defendants would have had an obligation to allow her to do so in these circumstances. However, because she failed to take any steps to indicate her intention, if she indeed wished to continue her employment, PG was entitled to treat her actions as constituting a voluntary resignation.

The Plaintiff appealed the trial court's ruling. In a short judgment issued September 21, 2007, the Court of Appeal for Ontario unanimously dismissed the appeal, holding:

The issue – whether Mr.[sic] Britton quit or was fired was fact driven. We are not persuaded that the trial judge made any clear or palpable error in his careful analysis of the evidence.

Nor has the appellant convinced us that the trial judge misapplied the law as it relates to the determination of when an employee will be held to have resigned.

The appeal must be dismissed.

Such "am I fired or not fired," grey-zone scenarios are not altogether uncommon in smaller workplaces and in organizations that do not routinely employ proactive, sophisticated human resources practices.

The Supreme Court of Canada's refusal to review the Britton ruling may well clarify that there is a high onus upon employees in these circumstances to take such direct and concrete steps as are necessary, including communicating with the employer and reporting to a workplace under highly strained conditions, to avoid an inference of voluntary resignation.

Counsel for the Defendants, Todd C. Hein, of Brampton firm McCabe, Filkin & Garvie, agrees:

I would say that this case underscores the existing general obligation of an employee to report to work, and that it is not the employer's duty to track down the employee and ask or insist that he or she come to work.

Mr. MacDonald takes a predictably narrower view:

The trial judge did not apply a duty of good faith on the employer to invite Ms Britton back to work, having sent her home and having told her she had resigned when in fact and in law, she hadn’t.

Another trial judge faced with the same facts may have approached the case differently in recognition of the inequality of bargaining power between employees and employers and most importantly, given that Ms Britton did not have legal advice during the critical events at issue whereas the employer did.

Hopefully the next trier of fact that tackles this issue will clearly apply the law and will appreciate that while a plaintiff may die the justice of her case does not.

Neither the trial judge nor the appeal court specifically addressed the implications of the draft Letter of Resignation handed by the employer to the Plaintiff for execution. Mr. MacDonald contends that constructive dismissal may have arisen as a matter of law on that basis alone:

Yes this was an error of law as I argued. It was much more than a draft resignation letter.

In the first meeting at the office Ms. Britton was accused of wrongdoing, told her responsibilities would change to which she stated she could not work for her employer if they did not trust her. She was upset. She was sent home. The reason given for her being sent home by her employer i.e. out of sensitivity for a ski injury she had suffered was found by the trial judge to be “not believable”. Ms. Britton was sent home and then within an hour or so brought back to a donut shop and presented with a letter on her employer’s letterhead and signed by the two principal partners of the business stating “Further to our conversation this morning we hereby acknowledge and accept your resignation effective immediately.”

Ms. Britton did not ask for the letter to be prepared nor was she told in advance the letter had been prepared. The letter was handed to Ms Britton and she was asked to sign it. She refused and the letter was left with her. She was never invited back to work. The trial judge also found that she did not expressly resign at either meeting. Because the employer prepared and signed the letter before presenting it to Ms. Britton they had accepted her resignation “effective immediately” when in the Trial Judge’s own findings she had not resigned.

That is a dismissal, a wrongful dismissal or a constructive dismissal - it can in no circumstances be a voluntary resignation.

Mr. Hein's view differs on the facts, if not the law:

I do not believe that, on the facts of our case, the draft Letter of Resignation provided by our client (the employer) could be seen as giving grounds for a constructive dismissal. That is not to say that such action, on the right facts, could give the foundation for an employee to argue constructive dismissal. However, in our case, the evidence was that the employer was simply presenting the letter on the basis that it felt that the employee had already resigned - the employer was simply asking that the employee confirm the resignation in writing. I think that the fact that the employee did not sign the letter of resignation raised an issue as to whether or not there was a resignation at that moment in time, but the employee's subsequent conduct reassured the trial judge that there had in fact been a resignation.

Both counsel acknowledged the challenge of proceeding to trial on behalf of a deceased litigant. Mr. Hein noted that Plaintiff's counsel encountered genuine evidentiary hurdles as a consequence of Ms. Britton's untimely passing:

Wrongful dismissal cases, particularly the constructive-dismissal variety, are generally difficult cases to advance; each one depending upon its own facts. In most litigation, it is most helpful to be able to advance your case on your own evidence, i.e. examination-in-chief. The fact that Ms. Britton unfortunately died before trial I believe made it that much more difficult for the Plaintiff. Of course, it is not known and cannot be said whether the outcome would have been different had she lived to the trial and given evidence on her own behalf. The trial judge was well aware of the issues arising from that fact, and determined at the outset to deal with those issues if and when they presented themselves. In the end, it was not necessary to delve into hearsay issues, and the trial judge was able to decide the case on the evidence presented.

Mr. MacDonald reasserts his disappointment with the ultimate outcome of the case:

While a plaintiff may die the justice of her case does not. While the participants in the justice system die, the law they create does not. The trial judge never considered what it must have been like for Ms. Britton to have died with the justice of her case unresolved.

In fact her last words to me were “You have to continue with the case”. I did continue at personal expense and sacrifice. But I did it because I believed in the system of justice we have. I really believed one court out of three would have applied the law as it is set out in the books i.e. the Ontario Court of Appeal cases of Kieran and Palumbo. I felt it was my professional duty and responsibility to follow her last instructions.

In addition to showing deference to the decisions of a trial judge on findings of fact it is also important for appeal courts to consider the correctness of the legal conclusion – particularly, as in this case, when no case law is cited in support of the decision at either the trial or the Ontario Court of Appeal.

The findings of credibility against the employer and that they acted insensitively makes the ultimate decision of the trial judge more unjust.

My prediction is this case will either not be followed by the courts or will be overturned when an appeal court finds the appropriate occasion to properly rule that an employer cannot force a resignation by sending an employee home and delivering to them a letter accepting a resignation effective immediately when the employee did not have a clear and unequivocal intention to resign.

Nonetheless, prudent counsel and employees will look to the Britton case as underlining the cautious and proactive approach that must be taken when workplace status is unclear. Reiterating Mr. Justice Siegel's comments at trial, if an employer has no duty to ascertain whether a Plaintiff intends to return to a workplace after a conflict-related absence, clearly, the employee alone must take appropriate steps to demonstrate that her intention to report to work continues, and that her absence cannot be construed as a voluntary resignation.

Had Ms. Britton retained counsel immediately and promptly placed her employer on notice that absent its timely response to the April 4 email in which she requested clarification as to her employment status, she would have no alternative but to consider herself constructively dismissed, perhaps the outcome might have been different.

- Garry J. Wise, Toronto

This article is cross-posted at BAR-eX: Fired or resigned or not sure ...

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EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Sunday, March 09, 2008

Animated Political Commentary

[John+McCaon+running-mate-GIF.gifIt is always refreshing to discover a blog that is trying to do something different.

So check out LeDaro, a clever Canadian blog that features original, animated political satire using creative photo compositions that do all the author's talking.

The example above is LeDaro's John McCain has a running mate.

License to Lie

Adulterous Italian women may now lie about their secret affairs without the fear of being guilty of perjury.

BBC News reports that Italy's highest appeal court has ruled that married Italian women who commit adultery are entitled to lie about it to protect their honour.

The appeal court held that a 48-year-old woman convicted of giving false testimony to police to conceal her secret affair had not broken the law.

Italy’s court of appeal has been in news in the past for a controversial judgment that a woman could not, by definition, be raped if she was wearing tight jeans, since, according to the Court, the jeans could only be removed with her consent. This judgment was reversed after protests by women’s rights groups.

- Shashi K. Raina, Toronto

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EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Karlheinz Schreiber's Ninth Life Begins

While the Supreme Court of Canada declined last week to hear Karlheinz Schreiber's appeal against extradition to Germany, Mr. Schreiber will nonethless be permitted to temporarily remain in Canada .

Minister of Justice Rob Nicholson issued the following statement last week:

Statement by Minister Nicholson Following the Supreme Court of Canada's Decision Regarding Mr. Karlheinz Schreiber

OTTAWA, March 6, 2008 - The Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada made the following statement today following the Supreme Court of Canada's decision to dismiss Mr. Karlheinz Schreiber's application for leave to appeal.

“With the dismissal of the leave application by the Supreme Court of Canada, Mr. Schreiber is now eligible for immediate surrender to Germany.

As Minister of Justice, I do not have authority to delay Mr. Schreiber's surrender pursuant to section 42 of the Extradition Act. Section 42 is not designed to deal with the issue of delay. Section 69 of the Extradition Act specifies that Mr. Schreiber must be surrendered to Germany within 45 days, after which time he has the right to apply for a discharge. However, through his counsel, Mr. Schreiber has requested a delay and agreed to waive his right under section 69 to apply for a discharge if he is not surrendered to German authorities within the next 45 days.

Therefore, because Mr. Schreiber has agreed to waive his right to apply for a discharge under section 69, I am prepared to defer the execution of his surrender order until he has had the opportunity to testify before the anticipated public inquiry into matters pertaining to the Right Honourable Brian Mulroney and Mr. Karlheinz Schreiber.
In this way, the public interest is served as Canadians will have the benefit of hearing Mr. Schreiber's testimony on Canadian soil while at the same time preserving my ability to give effect to the German extradition request and fulfilling my mandate as Minister of Justice and Attorney General of Canada under the Extradition Act.

With respect to the issue of bail, this is a matter to be addressed by the courts. Should Mr. Schreiber make an application for bail, counsel for the Government of Canada will respond in the normal course.”

- Garry J. Wise, Toronto

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EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Lesson 1: How to Not Win an Argument

- Garry J. Wise, Toronto

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EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Escape Fantasies For Lawyers and Other Snowed-In Canadians

Meet retired Toronto lawyer, Alvin Starkman, now operating a lovely B & B in Oaxaca, Mexico.

He was profiled last week in a story by L.A.'s Jewish Journal:

If you're heading down Mexico way, all the way down to Oaxaca, you should know about a bed and breakfast there called Casa Machaya. The name is a sly Jewish reference, a wink at potential clients for the B&B: That's right, it's not meant to be the Spanish "ch," as in "change," but a guttural "ch," as in mechaya, Yiddish for "joy."

...Besides running the B&B, Starkman also guides tourists to villages and archeological sites, an abiding interest of his. Fit and energetic-looking in his late 50s, Starkman leans over the balcony of his house, looking down at the B&B unit on a lower floor. He waves to the middle-aged Canadian couple staying there, then takes in the mountains all around and the city rising up dreamlike in the distance. Even though it's the dry season and the hills are covered with brown grass and shrubs, the landscape still seems magical.

Oaxaca seemed magical to Alvin and Arlene Starkman when they started vacationing here in the early 1990s. They loved it so much that in subsequent years they didn't vacation anywhere else. At the time they lived in Toronto, Canada, where Starkman practiced law. Little by little, with each subsequent visit, the idea of leaving his law practice and retiring to Oaxaca took root.

...Is Starkman happy with his decision to live out the rest of his life in Oaxaca?"I don't harbor any serious doubts," Starkman said. "Maybe, sometimes, for a fleeting moment.... And then you think, 'Look what I have here, retired and healthy in my 50s, doing what I want.... How can you compare slugging away doing family law to touring clients in the mountain regions of southern Mexico, taking in the sun, sampling mescal [local cactus liquor], and being welcomed into villagers' homes?'"

Did I mention we've had quite a lot of snow in Toronto, lately?

Many thanks to my old law school friend and accomplice, GTA criminal lawyer Sheldon Wisener, for pointing me to this happy story (and apologies to him alone for recent Montreal jokes on this Blog).

- Garry J. Wise, Toronto

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EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

The Democratic Presidential Nomination: Spinning The Rules

At times, Barack Obama sure looks like one skilled politician, particularly when it comes to working the media.

Skilled, for a Democrat, anyways.

I mention the Party in this context simply because Mr. Obama must have borrowed heavily from the Karl Rove playbook in developing and executing a communications strategy that, more often than not, has yielded a national media ready and willing to report the candidate's pure spin as hard fact.

With this in mind, I want to take a brief look at the Rules.

By that, I mean the actual delegate-selection rules governing the Democratic Party's Presidential nomination process.

Mr. Obama has been behind a very steady drumbeat that purports to make it plain that only delegates selected by voters through state caucuses and primaries have any moral right to decide the party's nomination. In other words, "superdelegates" have an ethical, democratic duty to do only as the voters have done. If Mr. Obama has the most directly-elected delegates, he contends, superdelegates must fall in line and nominate him.

End of story.

There has been quite the media echo-chamber, endorsing this translucent posture without question, as if it is a self-evident truth.

Well, I'll suggest it is not necessarily the truth.

And it certainly is not inherently right - not in the face of party nomination Rules that so clearly state otherwise - the superdelegates are by definition unpledged to any candidate and entitled to freely vote their consciences.

There is much that is oddly undemocratic, or just plain odd, in the Democratic Party's 2008 nomination processes.

The strange, caucus system is an obvious starting point.

I can't quite shake the image that the caucuses have more in common with a local square dance than a legitimate polling process.

Evidence abounds as to the democratic shortcomings of the caucus system. Most notoriously, balloting is open and public, not secret. The bustling, heated caucus atmosphere is certainly not inviting to the shy, timid, infirm or slightly anti-social. The voting itself occurs during very limited evening hours that make attendance logistically impossible for many shift-workers, single parents, and absentees. And when the weather is lacking, only the most-committed politicos are likely to be in attendance.

In other words, the process, while historically charming, leaves much to be desired as a true bellweather of community opinion. At best, caucuses sample only an unrepresentative slice of the electorate. A political poll conducted with such a methodology would be savaged.

Yet Hillary Clinton, notoriously unsuccessful in such caucuses, does not argue for the marginalization of caucus-goers, or the lessening of their voices at the party Convention.

Of course not. The Rules may give caucus-voters disproportionate influence, but the Rules are the Rules.

The ongoing primary fiascos in Michigan and Florida come next to mind as democratic anomolies arising from the party's nomination procedures.

With a population of approximately 16 million, Florida ranks as America's fourth most populous state. At approximately 10 million, Michigan is the nation's eighth-largest. The two states' combined populations comprise nearly 10 percent of the nation's.

Voters in both states have spoken. Michigan voted January 15. Florida voted January 29. Voters in each state chose Hillary Clinton.

But the results will not count. The two states' delegates will not be seated.

Why? Because each state broke the Rules.

Each held its primary in January, earlier than allowed by the Democratic National Committee.

In Florida, Mrs. Clinton won 108 delegates, while Mr. Obama won 77. In Michigan, where Mr. Obama was not on the ballot, Mrs. Clinton added 73 pledged delegates. The net pick-up from the two states for Mrs. Clinton is 104 delegates.

With several key primaries ahead, and as the charts above from DemocratWatch blog illustrate, the delegate tallies including these two states leave the candidates' pledged delegate totals in a near dead-heat. Mrs. Clinton is the clear front-runner when committed superdelegate votes are counted.

Without these states, Mrs. Clinton is behind.

Mrs. Clinton, of course, does not contend that the Michigan and Florida primary results must be counted - that the voters' voices must be recognized by seating their delegates.

They are currently disqualified for non-compliance with the Rules.

And that is that

It remains open to both states to seat legitimate delegates if they hold subsequent primaries that accord with Party regulations.

They likely will. It will be tedious, expensive and inconvenient. Mrs. Clinton has favoured mail-in re-votes to select delegates from these states in a process sanctioned by the Party. Mr. Obama has been strangely silent on the issue. Bottom line, though, is that until these states follow the Rules, they will not get delegates at the Convention.

Period.

The same Rules that permit state caucuses rather than primaries, and currently disqualify Michigan and Florida, also appoint the superdelegates. These are 796 unpledged delegate positions, automatically granted to Democratic National Committee members, sitting Members of Congress, Governors, former Presidents and Vice Presidents and other "distinguished party leaders."

Superdelegates make up approximately 20% of total convention voters. Their role as free voters is spelled out, mandated and codified by Party regulation.

They may vote as they choose. And it is their legal and moral imperative to do so according to the Rules.

So who came up with the grand notion that the superdelegate independence Rules are pliable or dispensable, while all other nomination Rules require strict compliance?

Where did the idea arise that Rules disenfranchising 10% of America's population in Florida and Michigan - and disproportionately favouring results from unrepresentative, undemocratic caucus straw-votes - must be followed, while Rules appointing Democratic Party leaders and elders as automatic, free superdelegates must, as a matter of democracy, be abandoned midstream?

Sounds like well-executed spin to me.

And the media have swallowed it - hook, line and proverbial sinker.

So, I still don't know about Mr. Obama as a candidate.

But I sure do hope his media/communications team plays a leading role in the Democratic Presidential campaign - whomever the nominee may ultimately prove to be.

Because Mr. Obama's communications team is damned good.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

It Really IS Snowy Out There...


I understand that those of you who live in the Arctic (and less-civilized places, such as Montreal) think it's funny when Toronto gets dusted...

But, boy, there sure is a lot of snow out there...

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Saturday, March 08, 2008

Solidarity with Pakistani Lawyers: Black Flag Week, March 9 -15, 2008

From an email received Friday:

We are asking you to support and promote international solidarity for Black Flag Week, March 9 –15, in Pakistan. Aitzaz Ahsan, the President of the Supreme Court Bar has called for using black flags at all rallies and meetings, and the lawyers in Pakistan will be distributing black headscarves and armbands. We need your help because the principles that lawyers stand for matter. Everywhere.

The purpose of Black Flag Week is to call for the restoration of the rule of law, the reinstatement of the judiciary and the restoration of the Constitution and democracy in Pakistan. The recent election was a clear referendum. The people of Pakistan have spoken. Now, it is time for the judiciary to be restored, for an end to house arrests and other measures of intimidation, for the end of arbitrary rule.

We are contacting bar associations, prominent lawyers and journalists, and law schools here in the United States and asking them to show support for Pakistani lawyers by wearing black armbands or an item of black clothing that will call attention to their struggle for civil liberties. Our goal is to inform the public about the situation there and the need for restoration of the rule of law. We would like support and publicity worldwide-- with your help-- in spreading our message or one of your own.

From Achieving Our Country:

At first glance, there would seem to be no reason to turn our attention to a lawyer’s protest in a place 10 time-zones away on the other side of the world. After all, don’t we have enough on our plate...

Why worry about the Pakistani judiciary? Why worry about the restoration of democracy there?

In truth, it is probably always a smaller world than we imagine. Black Flag Week, which starts Monday, is set to commemorate the deposition of Chief Justice Iftikhar Muhammad Chaudhry last year on March 9, 2007, the catalyst of a courageous lawyers' movement - and a political firestorm - that has engulfed Pakistan for months. Along with the subsequent State Emergency declared by President Musharaff on November 3, 2007, the assassination of Benazir Bhutto on December 27, 2007, and the free elections of February 18, 2008, it was a pivotal event, with implications, as things have turned out, worldwide. In Pakistan, many tens of thousands have protested in solidarity with the lawyers, and over the course of the turbulence and the elections, hundreds, like Ms. Bhutto, have lost their lives.

See more from Wise Law Blog's archives on the courageous struggles of Pakistan's legal profession.

We are glad to offer our support.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Facebook "Study Group" Leads to Ryerson "Cheating" Allegations

Yet another local Facebook controversy is attracting international attention.

Chris Avenir, an 18 year-old student at Toronto's Ryerson University faces possible expulsion for academic misconduct over his role as administrator of a chemistry "study group" on Facebook.

According to eCanadaNow, university officials allege the group contained "cheats, tips, and ways to get around the online testing methods that the University uses for its classes."

Ryerson spokesman James Norrie told CBC, "It is our job to protect academic integrity from any threat. And if that threat comes from new online tools, we have a responsibility as academics to understand the risks, to assess those risks and threats, and to educate people about how to avoid misconduct."

Students consider the administration's response to be "vast overkill."

A disciplinary hearing is scheduled for March 11, 2008.

....

UPDATE: March 12, 2007: Ryerson University Holds Facebook "Cheating" Hearing

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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