Thursday, August 12, 2010

California Same-Sex Marriage Stay To Be Lifted August 18

Reports from around the web:

ABA Journal:
The federal judge who ruled California's same-sex marriage ban unconstitutional has declined to permanently stay his ruling. But he did allow a temporary hold on his order, giving Prop 8 supporters time to appeal the ruling.Supporters have until Aug. 18 to appeal to the 9th U.S. Circuit Court of Appeals. But only those who have standing, those impacted by U.S. District Judge Vaughn Walker's order, will be able to appeal, the Los Angeles Times reports.
Read the 11-page final stay order (PDF).
The campaign for Proposition 8 plans to file an immediate appeal.
Chief Judge Vaughn Walker today denied a motion to stay his decision overturning California's ban on same-sex marriage. But Walker stayed entry of judgment until Aug. 18 at 5 p.m., giving proponents a window in which to appeal his ruling on the stay to the 9th U.S. Circuit Court of Appeals. The decision on the stay came out after a morning of online reports describing a growing line of hopeful couples congregating at San Francisco City Hall.
From Point of Law:
Judge Walker refused to grant a stay of his ruling in Perry v. Schwarzenegger. At the moment, the California governor and attorney general are refusing to defend Prop 8, and Judge Walker held that the intervenors, the organizations that supported Prop 8, might not have standing to appeal his ruling.
Also on the appellate standing issue, Andrew Sullivan:
This seems to me the news in Judge Walker's decision to extend a stay on his ruling in favor of marriage rights for gay couples until August 18. I'm not a legal expert but this is from the NCLR's release:
Even though Judge Walker did not immediately let same-sex couples in California marry, the ruling provides important insight into the merits of the issues that the Ninth Circuit will consider on appeal. For example, in his ruling today, Judge Walker casts serious doubt on whether the proponents of Prop 8 even have "standing" to pursue an appeal because they do not speak for the state of California, and the official representatives of the state agree that Prop 8 is unconstitutional. Standing refers to whether a particular person has a legal right to bring an appeal. In his ruling today, Judge Walker said: “As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction."
But the governor and attorney general favor marriage equality. So it will be up to Anthony Kennedy, if the appeal court denies standing to the Prop 8 proponents. But maybe not. A reader notes:
Appellate courts generally try to resolve cases on the narrowest grounds possible. Since the question of whether the intervenors have standing to pursue the appeal is a procedural/jurisdictional issue, and not the merits of the case, an appellate court should look to that question first to see if the case can be resolved without addressing the merits. If the court decides that the intervenors don't have standing to appeal, the court could resolve the case in favor of the plaintiffs without granting much room for the Supreme Court to take the case and reverse it.
- Garry J. Wise, Toronto

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B.C. Court: Loss of "Promising" Law Career Assessed at $5.1 Million

In a decision released August 9, 2010, a Britsh Columbia Supreme Court Judge has assessed the value of a young lawyer's loss of income capacity, after injuries arising from an unfortunate dance hall accident essentially ended her budding legal career.

In assessing these economic damages at $5.1 million, The Honourable Mr. Justice Kelleher noted the Plaintiff's potential value as a "rainmaker" to prospective, large-firm employers:
[325] Mr. Mallett also noted that the plaintiff was very effective at bringing new clients into the firm. She brought in work that was above her level of expertise, which is unexpected for a junior lawyer.
[326] Mr. Pakrul stated that the plaintiff had “above average ability, perhaps extraordinary ability to successfully market in cold-call situations where she didn’t know anybody and in situations where she was simply working with existing contacts or clients.”
[327] Peter Snell was also a lawyer at Alexander Holburn, becoming a partner in 2003. He agreed that the plaintiff had very good business development skills.
[328] I accept that the plaintiff had the skill to become a successful rainmaker, and would likely bring a substantial volume of business to whatever firm she worked for. However, as counsel for Lombard points out, it is important to keep in mind that the plaintiff was only a junior associate with limited experience at the time she left Alexander Holburn. Accordingly, some caution must be exercised in basing a pattern of future success or “rainmaking” on this relatively short period of employment.
[329] The four considerations listed in Brown v. Golaiy are all present here: Ms. Danicek has been rendered less capable overall from earning income from all types of employment; the plaintiff is less marketable or attractive; she has lost the opportunity of taking advantage of all job opportunities which might otherwise have been available to her; and is less valuable to herself as a person capable of earning income.
[330] It is highly likely that she would have stayed in the workforce and achieved a substantial income as a successful commercial solicitor.
[331] Ms. Danicek has a residual earning capacity which I have described above.
[332] In all the circumstances, a fair and reasonable assessment of the plaintiff’s loss of capacity, net of her residual earning ability, is $5.1 million. It is so awarded.

- Garry J. Wise, Toronto

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Ruling Today on Stay Pending Appeal of California Prop 8 Decision

Washington Post reports:
SAN FRANCISCO -- The federal judge who overturned California's same-sex marriage ban is set to rule Thursday on whether gay marriages should resume immediately in the state or await an appeals court's input.
Chief U.S. District Judge Vaughn Walker announced late Wednesday that he would issue his decision by noon on requests to impose a stay that would keep Proposition 8 in effect while its sponsors appeal his decision.
The announcement came after lawyers for gay couples, California Gov. Schwarzenegger and Attorney General Jerry Brown filed legal motions Friday asking that same-sex marriages be allowed to resume immediately.
- Garry J. Wise, Toronto

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Tuesday, August 10, 2010

Correction re: Court of Appeal on Twitter

Our report yesterday on the appearance of Twitter feeds for the Court of Appeal for Ontario and Supreme Court of Canada erred in crediting the fine folks at CanLii for these pages.

Via Twitter, we learned today that:
The CanCourts/ tweets are provided by @slaw_dot_ca and @fodden They make use of RSS feeds from CanLII.
Congratulations, Professor Simon Fodden on yet another excellent innovation.

We stand gladly corrected.
- Garry J. Wise, Toronto

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Monday, August 09, 2010

Ontario Court of Appeal on Twittter

A nice discovery today.

CanLii Professor Simon Fodden has set up a Twitter page for the Court of Appeal for Ontario, featuring  concisely indexed links to current decisions by Ontario's highest appellate court.

It looks like decisions have been posting for several months, but the CanCourts ONCA Twitter site hasn't come to my attention until now.

Follow the OCA on Twitter here.  CanLii Professor Fodden also provides a Twitter feed for decisions of the Supreme Court of Canada here.

- Garry J. Wise, Toronto

See the correction to this article, posted August 10, 2010, as also reflected in the strikethrough and corrected text in this post. Credit where credit is due.  Sorry for the error.

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Shorter David Frum

Bristol and Levi broke up (again) because of same-sex marriage:
The harm feared from same-sex marriage has already arrived: Whether same-sex marriage is accepted or not, opposite-sex marriage as a norm and expectation has already collapsed.
The Bush speechwriter has once again left me speechless, as he apparently pines for the days when propriety alone would have forced a shotgun wedding upon this highly publicized, ill-fated couple.
- Garry J. Wise, Toronto

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NHL Arbitration Nixes Kovalchuk's Suspect 17-Year Deal

Arbitrator Richard Bloch has sided with the NHL and rejected a suspicious 17-year contract between Ilya Kovalchuk and the New Jersey Devils.

The full text of Richard. Bloch's NHL - Kovalchuk arbritration opinion and award is here.

The Toronto Star's Damien Cox reports:
Talking to people throughout the hockey industry this morning, it was clear most expected that while Ilya Kovalchuk's 17-year contract with the New Jersey Devils was a rather obvious - blatant? - attempt to circumvent the NHL's salary cap system, a number of similar contracts allowed in recent years by the NHL was going to make it difficult for arbitrator Richard Bloch to side with the league in its rejection of Kovalchuk's deal.

But Bloch did just that, saying the Kovalchuk contract "has the effect of defeating" the NHL's cap system.

"In this case, the record strongly supports the claim this contract is “intended to, or has the effect” of defeating or circumventing the Salary Cap provisions of the CBA," wrote Bloch in his decision. 
"The overall structure of this (contract) reflects not so much the hope that Mr. Kovalchuk will be playing in those advanced years, but rather the expectation that he will not. This is a long contract --17 years -- the longest in NHL history. That, in itself, poses no contractual problem. . . . .  But Kovalchuk is 27 years old, and the agreement contemplates his playing until just short of his 44th birthday. That is not impossible, but it is, at the least, markedly rare. Currently, only one player in the League has played past 43 and, over the past 20 years only 6 of some 3400 players have played to 42."
Call it a small victory for common sense in professional sports jurisprudence.
- Garry J. Wise, Toronto

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Friday, August 06, 2010

Bill 68: Proposed Changes to the Ontario Employment Standards Act

Ontario's Bill 68, the Open for Business Act, 2010, which passed second reading in June, proposes significant changes to Ontario's Employment Standards Act.  

The legislation is described in a provincial government backgrounder:

The Ministry of Labour is proposing amendments to the Employment Standards Act, 2000, that would:
  • Allow the Director of Employment Standards to require claimants to provide specific information and let their employer know about their Employment Standards complaint before the claim is assigned to an officer. 
  • Authorize employment standards officers to attempt settlements of complaints. 
  • Allow officers to make decisions on claims when parties fail to attend decision-making meetings or provide evidence on time. 
These amendments support the Ministry of Labour’s initiative to advance fairness in the workplace and modernize its Employment Standards program. These initiatives include:
  • Launching a task force in August 2010 to eliminate the backlog of 14,000 claims in two years. 
  • The new online severance pay decision tool for employers and employees. 
  • The future launch of a termination of employment/temporary layoff tool that determines when a layoff becomes a termination, the termination date and any termination pay owing.
The Toronto Star today details objections by various critics of the proposed changes:
“You don’t reduce backlog by creating more barriers to discourage complaints,” said Fred Hahn, president of the 230,000-member Canadian Union of Public Employees in Ontario.
For more reading, see the Star article: Employment bill stymies complaints against employers, critics say.

- Garry J. Wise, Toronto

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Thursday, August 05, 2010

Kagan Appointment to U.S. Supreme Court Confirmed

By a vote of 63-37, the U.S. Senate has today confirmed the appointment of Elena Kagan to the U.S. Supreme Court.

- Garry J. Wise, Toronto

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Sanctimony, Hypocrisy and the Proposition 8 Ruling

AmericaBlog's Joe Sudbury, on Newt Gingrich's vocal opposition to yesterday's Proposition 8 decision and the legalization of same-sex marriage in the U.S.:
Newt thinks marriage should be the union of one man and three consecutive women.
- Garry J. Wise, Toronto

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Wednesday, August 04, 2010

Thomson Reuters Acquires Canada Law Book

In a development that will shock many in Canada's venerable legal publication industry, Thomson Reuters today announced that it has acquired Canada Law Book.

A Thomson Reuters press release tells the tale:
Toronto, Canada, Aug. 4, 2010 – Thomson Reuters today announced the acquisition of Canada Law Book, a division of the Cartwright Group Limited. Canada Law Book will be aligned with Carswell, a Thomson Reuters business headquartered in Toronto. Terms of the deal were not disclosed.  
Canada Law Book produces publications across 36 topics of legal information, and is known for having high editorial standards, as well as authors who are among Canada’s most prominent legal scholars. 
...Carswell and Canada Law Book each brings more than 100 years of legal tradition and expertise to customers, and together provide the recognised excellence, integrity and highest editorial standards that ensure legal practitioners, judges and academics receive the most comprehensive materials for their practise.
With the nation's two leading legal publishers now about to operate under one roof, one wonders whether the end result will be fewer legal publications, fewer writers being published, and the bottom lines playing a more decisive role than ever in determining the materials that are ultimately made available to the legal profession.

And needless to say, it wouldn't be much of a surprise if,  not so long from now, another press release announces that these two publishers have been folded into one. 
- Garry J. Wise, Toronto

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California's Proposition 8 Restriction on Gay Marriage Ruled Unconstitutional

A California federal court today ruled that the State's voter-enacted ban on gay marriage is unconstitutional.  The full ruling of U.S. District Court Judge Vaughn Walker is below:

- Garry J. Wise, Toronto

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