Friday, April 29, 2011

140 Law - Legal Headlines for April 29, 2011

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Have a Royal day!
- Rachel Spence, Toronto

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

Thursday, April 28, 2011

140 Law - Legal Headlines for April 28, 2011

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Have an excellent Thursday!
- Rachel Spence, Toronto

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

Wednesday, April 27, 2011

140 Law - Legal Headlines for April 27, 2011

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Have a great day!
- Rachel Spence, Toronto

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

Tuesday, April 26, 2011

140 Law - Legal Headlines for April 26, 2011

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Have a wonderful day and to our readers in Toronto, stay dry!

- Rachel Spence, Toronto

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

This Week At The Ontario Court of Appeal: 11-04-21

Each week Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

Smith v. Casco Inc. An appeal in a case where the plaintiff was suing her husband's employer. Ms. Smith's husband worked for Casco for 39 years and was offered an early retirement with pension in 2000, with a variety of pensions from which to select. The default option would have provided Ms. Smith with survivorship benefits for life; however, her husband selected a different option, which provided greater benefits to him but had no survivorship benefits to his wife beyond 2005. In order to consent to this, Ms. Smith had to sign a spousal waiver, which upon her cursory reading she mistakenly believed provided her with a lifetime survivorship benefit.

Mr. Smith died in 2003, at which time Ms. Smith learned of the actual survivorship clauses and brought action against Casco for negligent misrepresentation. The trial judge found for Ms. Smith and awarded her damages, equivalent what she would have received if her husband had selected the default pension with survivorship benefits for life. Casco appealed to the Divisional Court, which agreed with the trial judge in a split decision.

Casco then appealed to the Court of Appeal.

Casco raised a number of grounds, but the Court apparently considered only one argument to be of import. According to the Pension Benefits Act, survivorship benefits are required to be in every pension unless the persons entitled to those benefits sign a waiver in in the form approved by the Office of the Superintendent.

The Casco waiver form deviated from this form in multiple ways: it did not have a standalone statement in bold type, as per the standard Superintendent-approved waiver, stating that by signing the document entitlement pursuant to the Act was waived, nor was it titled "Waiver of Joint and Survivor Pension" as the approved waiver is, nor did it state in bold type that before signing each person should obtain independent legal advice.

Casco's failure to provide a waiver of the prescribed form was the reason that Ms. Smith was successful both at the trial level and then in her appeal to the Divisional Court, and the Court of Appeal again agreed with Ms. Smith and found for her, awarding costs to her as well. Read-the-whole-case rating: 2.

Whelan v. Ontario Racing Commission. Mr. Whelan took issue with a number of the terms of the Access Agreement of the Woodbine Entertainment Group, which runs horse racing events on its racetracks, and refused to sign the agreement. As a result, he was not permitted to race at WEG racetracks. He was informed by the onsite Ontario Racing Commission judge that he had to sign in order to be allowed to race, so he then appealed that decision to an ORC panel, which dismissed his request for a declaration that he need not sign the agreement. Mr. Whelan then appealed that decision to the Divisional Court, which did not agree that only the ORC's rules (as opposed to WEG's) can regulate racing, but nonetheless agreed with Mr. Whelan in that the ORC decision allowed WEG to arbitrarily exclude him from racing without a hearing, and that this was not acceptable. WEG appealed the Divisional Court's decision.

The Court of Appeal agreed with WEG and allowed its appeal, reversing the Divisional Court's decision. The Court first pointed out that the ORC's decision was not in respect to an agreement that denied him the ability to be heard by the ORC, and further that the agreement did not give WEG the right to arbitrarily exclude him. The Court also found that the Divisional Court did not give due consideration to the public's interest in requiring that Mr. Whelan sign the agreement.

The Court felt that the reasonableness standards set forth in Dunsmuir v. New Brunswick were upheld by the ORC. It held that the ORC's reasons showed that that body had considered all interests and explained its decision sufficiently, and listed the public interest considerations requiring Mr. Whelan's agreement in detail. Read-the-whole-case rating: 2 unless you'd like to read a good example of how administrative law appeals are handled in the post-Dunsmuir era.

R. v. Valovic. Mr. Valovic and his company were summarily convicted of multiple counts of GST and income tax evasion, as well as filing false income tax returns (along with his non-appealing wife, also convicted on similar multiple counts) and sought leave to appeal the decision. The Court of Appeal held that this was a case where leave to appeal should not be granted.

Firstly, the Court disagreed with Mr. Valovic's argument that the appeal would determine what sort of evidence in addition to a discrepancy between return and actual net worth is required to prove actus reus of tax evasion, primarily because the issue was addressed in 2008 in R. v. Hunter, where it was made clear that the discrepancy alone was enough to prove actus reus.

The Court also found that the appeal centred on two statements made by the trial judge, neither of which merited an appeal. In the first of these two statements, the trial judge stated that electricians, as a trade, were "notoriously likely to involve cash transactions more or less depending on the inclination of the tradesman." Mr. Valovic argued that this was a demonstration of bias on the part of the trial judge. The Court disagreed, holding that in context, the statement was addressing the nature of Mr. Valovic's method of operating his business, rather than expressing attitudes towards electricians generally. (The Court did note that the trial judge perhaps ought to have used different language to make this point.)

The second statement Mr. Valovic felt merited appeal referenced a potential deal he was considering with a contact in Nigeria. Mr. Valovic, in his conversation with the Nigerian contact, created a bank account in Slovakia for the purpose of receiving payment from a fraudulent invoice (although this plan was never executed, and the Crown submitted that this in conjunction with his email conversations demonstrated that Mr. Valovic knew that he had to pay income tax and had wilfully attempted to avoid doing so. Mr. Valovic argued that the trial judge's reaffirmation of this argument, especially after stating that he would not use the Nigerian-related evidence, constituted propensity evidence and was therefore inadmissible.

The Court disagreed with this as well, stating that the trial judge's comment was a throwaway, and that the lengthy discussion on-record about the impropriety of using the related evidence made it clear that the trial judge was not using the comment to prove mens rea for the offence. (Again, the Court noted that the trial judge's comment was "unfortunate and gratituous.") Read-the-whole-case rating: 3, because this is an interesting read of appeal grounds being smacked down, albeit politely, by the Court.
- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

Monday, April 25, 2011

140 Law - Legal Headlines for April 25, 2011

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Have an excellent Monday!
- Rachel Spence, Toronto

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

Thursday, April 21, 2011

140 Law - Legal Headlines for April 21, 2011

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Have a lovely long weekend!
- Rachel Spence, Toronto

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

Ontario Court of Appeal Increases Compensation for Court-Appointed Lawyers

The Ontario Court of Appeal on Tuesday issued an important ruling regarding public payment of legal fees:
Judges have the power to not only appoint lawyers to represent the interests of accused people, but to set the fees they’ll be paid from the public purse, the Ontario Court of Appeal has ruled.

In a unanimous decision Tuesday, a three-judge panel rejected arguments from Ontario’s attorney general that judges have no business setting compensation for court-appointed lawyers because only the Legislature can decide how to spend money from the province’s consolidated revenue fund.
The decision in R. v. Russel is in some ways a major step forward in public funding of unrepresented persons, which has been an issue in Ontario for several years now. In 2009, Ontario criminal lawyers boycotted Legal Aid cases on the grounds that Legal Aid was underfunded and did not give them the resources to effectively represent their clients until the province agreed to increase funding for Legal Aid.

In Russel the Court of Appeal seemed to at least partially recognize this sentiment by agreeing with the trial judge who assigned payment to the lawyers operating as amicus curiae on Mr. Imona Russel's behalf at rates well in excess of Legal Aid rates, on the basis that his case was complex and that the client had been exceptionally uncooperative with previous counsel, which was why he no longer qualified for Legal Aid. (The question of whether Mr. Imona Russel's lack of cooperation would have been so great an issue in a relationship with a more generously compensated lawyer is simply too hypothetical to answer, and one both hopes and expects that most lawyers would be as patient as possible with a fractious client regardless of their compensation.)

Now, amicus curiae are not, properly, counsel to the defendant; in a situation such as this they advance legal argument on his behalf, but are not in any sense his client and therefore are not obligated to take instruction from him. The Court of Appeal rejected the Attorney General's argument on appeal that this constituted an end-run around the Legal Aid limits:
This submission fails for three reasons. First, the Legal Aid Services Act does not apply to amicus. Second, amicus were appointed because, in part, the legal aid scheme could not adequately respond to these cases, in large measure because of the conduct of the accused. Third, amicus does not perform the role of defence counsel. For example, we agree with the reasons of Forestell J. that the task asked of amicus in Imona Russel #1 cannot simply be equated with defence counsel. It was not. It was to assist the court in very difficult circumstances, in part by performing some of the services of defence counsel for a completely uncooperative client but also serving the much broader interests of the administration of justice as described below.
Of course, if amicus are not defense counsel, but the nature of the case required that they be paid more than defense counsel being compensated through Legal Aid, this then demands that we ask why counsel for Legal Aid were not paid as highly in the first place. The Court states that the events in Russel are exceptional because of the defendant's conduct, but criminal defense lawyers working with Legal Aid clients frequently have to defend clients only marginally less difficult (many clients with mental illnesses wind up on Legal Aid rolls). Does not the difficult nature of that work, then, following Russel, demand higher compensation?

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

The (Deliciously) Legal Implications of Nutella

Ferrero SpA, the manufacturers of Nutella (in this writer's opinion, probably the peak of human inventive capacity) have launched a lawsuit against a Singaporean coffee chain for trademark violation:
Sarika Connoisseur Cafe Pte, owner of 30 coffee shop outlets in Singapore, is trying to pass off the Nutello drink as being associated with Nutella, Ferrero claimed in a lawsuit filed in Singapore High Court.
Sarika operates The Connoisseur Concerto chain of restaurant/cafes, and although the Nutello drink is not currently displayed on their website, if the Nutello drink's trademark is similar to their primary logo, Ferrero will have a legal battle on their hands, as their argument essentially will have to be that the word fragment "nutell-" in conjunction with any food product with both hazelnut and chocolate elements is a vital part of the Nutella trademark, which one expects Sarika will contest. Other than Nutella Snack And Drink (which is a divided cup with iced tea, Nutella and cookie sticks sealed apart from one another) Ferrero hasn't produced many spinoff products using the Nutella brand (something that would have strengthened the argument that the trademark should be associated with all types of hazelnut/chocolate food products).

(One also notes the existence of Nutello brand ice cream, produced by the Swedish company Lejonet and Bjornen, which is a vanilla ice cream with hazelnut/chocolate-cream globs in it. This writer was not able to find any evidence of Ferrero having launched action against these Swedes.)

The tort of passing off one's trademark is a serious one (as trademark valuations can extend into the tens of millions of dollars), and it's understandable that Ferrero would seek to defend their trademarks aggressively even if the suit is potentially likely to fail: the genericization of a trademark (such as "aspirin" or "yo-yo," both originally owned brands) is something most companies will always strive to avoid. In the case of Nutella, most other hazelnut/chocolate spreads have wildly dissimilar names and appearances so as to avoid attracting the tort of passing off.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

Wednesday, April 20, 2011

140 Law - Legal Headlines for April 20, 2011

Here are today's leading legal headlines from Wise Law on Twitter:

Have a great day!
- Rachel Spence, Toronto

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