Friday, June 29, 2012

Video: Zimmerman Prosecutor Stands His Ground

Bearing an uncanny resemblance to Dr. Phil, Florida State prosecutor Bernie de la Rionda argues against bail for accused killer, George Zimmerman:
   
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Tax or Mandate? John Roberts As the Decider

On the farce that was yesterday's US Supreme Court ruling that narrowly preserved the Obama health care plan, Salon writer and University of Colorada law professor Paul Campos gets it entirely right:
Today, John Roberts got to decide what sort of healthcare system the United States should have. It would be difficult to explain to someone not familiar with the American legal-political system why this isn’t a crazy way to decide such an issue, for the very good reason that it is crazy when you think about it, which is why most people don’t. 
...Roberts has this extraordinary degree of power because our political process remains committed to an absurd system of judicial review, in which someone like Roberts gets to “interpret” an unavoidably ambiguous 220-year-old document, written at a time and place that had less in common with America in 2012 than it did with England in 1500. Under such interpretive conditions, it’s inevitable that “the Constitution” ends up meaning pretty much what John Roberts thinks it ought to mean.
What's In a Name?

So let me get this straight - if you call it a mandate, it's an illegal, devious federal overreach of Marxian proportions, and must be struck. But if you call it a tax, then its perfectly fine. This is because while governments can impose taxes, they aren't allowed to require Americans to purchase products from  private enterprise on threat of penalty.  Unless the government that does the requiring is a state government, as in the case of mandatory auto insurance, which is the law in 47 US states.  Now, in America, when state governments legislate such mandates, it's fine.  But when the feds do it, it's the leading edge of tyranny or worse - socialism.  Unless you call it a tax.  Because then it's legal. 

Fortunately, for the more than 50 million Americans without health insurance, John Roberts says its a tax


We can all breathe easier now. 


(Until some pretentious hack with a law degree and an agenda proposes to re-litigate questions about whether it's the kind of tax that the Constitution authorizes, that is).
- Garry J. Wise, Toronto

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

Wednesday, June 27, 2012

140Law - Legal Headlines for Wednesday, June 27, 2012

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, June 27, 2012:
  • War on drugs 'unsustainable,' ex-justice Louise Arbour says
  • Unified Family Court's 35th Anniversary - Court model started in Hamilton 
  • Antonin Scalia, ranting old man (Paul Campos/Salon)
  • Federal judge blocks Florida law barring contracts for business tied to Cuba, Syria 
  • Judge to testify at Manitoba inquiry into sex scandal - Justice Lori Douglas hearing to begin July 14 
  • Probe Into Madam Justice Lori Douglas Gets Underway
  • Court: Rape victim can sue after being arrested and denied contraception 
  • Germany court criminalizes circumcision of minors
  • The White House's blemished record of disclosure on Bush-era torture 
  • Obama prepping thousands of lawyers for election (Associated Press) 
  • SCOTUS to rule on military lying (Stephanie Gaskell/Politico)
  • Ontario court awards punitive damages against insurer
  • Man charged with assault and battery with a dangerous weapon - McDonald's fries 
  • CIBC, Scotiabank overtime class action suits can proceed: court - Globe and Mail 
  • Court ruling certifying class actions vs banks on unpaid overtime not expected to spark deluge of cases 
  • - Rachel Spence, Law Clerk
    Visit our Toronto Law Office website: www.wiselaw.net

    Tuesday, June 26, 2012

    Sunday, June 24, 2012

    Ontario Employment Law: Contractual Entitlement to Notice and the Question of Mitigation

    In Bowes v. Goss Power Products Ltd., decided May 25, 2012, the Court of Appeal for Ontario was faced with an interesting question of law:

    Is an employee, who is terminated without cause, required to mitigate his or her loss when entitled to a fix term of notice or pay in lieu of notice?

    In the case, the employee, Peter Bowes had entered into a written contract of employment with Goss Power Products Ltd, which provided that he would receive six months' notice or pay in lieu thereof if his employment was terminated without case. The contract was silent as to any duty on his part to mitigate his damages in the event of a termination without cause. As it happened, only two weeks following the date of termination, Mr. Bowes was lucky enough to secure comparable employment at the same salary he had been earning with Goss.  

    The employer took the position that even though the contract was silent as to any obligation on Mr. Bowes to mitigate his damages, he had an implied obligation to do so and had effectively mitigated most of his damages by obtaining this new position. Therefore, the employer argued it did not have to pay Mr. Bowes anymore than

    In answering "no" to the question set out above, the Court noted that a contractually fixed term of notice is distinguishable from common law reasonable notice where a duty to mitigate is an implied term of the employment relationship. In this regard, Winkler C.J.O. stated:
    When parties contract for a specified period of notice or pay in lieu thereof they are choosing to opt out of the common law approach applied in Bardal. In doing so, the parties should not be take as simply attempting to replicate common law reasonable notice.
    Winkler C.J.O. continued:
    In my view, there is nothing unfair about requiring employers to be explicit if they intend to require an employee to mitigate what would otherwise be fixed or liquidated damages. In fact, what is unfair is for an employer to agree upon a fixed amount of damages, and then, at the point of dismissal, inform the employee that future earnings will be deducted from the fixed amount. 
    This decision illustrates that where a contract specifies the period of notice, or pay in lieu thereof, which an employee will be entitled upon a termination on a without cause basis, courts will not presume a term requiring the dismissed employee to mitigate its damages.

    If you believe that you have been wrongfully dismissed, please contact a lawyer who can advise you as to your rights and entitlements.

    - Robert Tanha, Toronto
    Visit our Toronto Law Office website: www.wiselaw.net

    Friday, June 22, 2012

    140Law - Legal Headlines for Friday, June 22, 2012

    Here are the leading legal headlines from Wise Law on Twitter for Friday, June 22, 2012:
    - Rachel Spence, Law Clerk

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

    Wednesday, June 20, 2012

    140Law - Legal Headlines for Wednesday, June 20, 2012

    Here are the leading legal headlines from Wise Law on Twitter for Wednesday, June 20, 2012:
    - Rachel Spence, Law Clerk

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

    Will Microsoft's Surface be the Tablet for Lawyers?

    Though I'm a long-time Windows user, I've certainly done my best over the last couple of years to warm up to Apple's clearly superior mobile and tablet products.

    To be sure, though,  I haven't quite succeeded.  Subconsciously, I keep asking myself the same nagging question: "Why can't I do all the stuff on my iPad that I've been doing for almost twenty years on my PC?

    On this fundamental question, Microsoft's new Surface tablet could be a game-changer.

    We'll see - but if, as promised, it actually will be able to seamlessly run all Windows-based software, I expect to be near the very front of a long line of lawyers clamoring to acquire this new, strangely innovative product that merely lets us do all the things we've always been able to do, the way we know how to do them.

    One can only hope.

    For more reading, see: Why Microsoft's Surface Tablet Shames the PC Industry

    - Garry J. Wise, Toronto
    Visit our Toronto Law Office website: www.wiselaw.net

    Solutions? Bigger Anti-Smoking Warnings?

    I'm a smoker, but I'll say this anyway.

    If the government is genuinely serious about limiting tobacco-related harm, try this on for a concept:

    Just do it - ban the sale of cigarettes and tobacco products in Canada.

    Don't enact silly,  feels-good, looks-awful measures like legislating larger anti-smoking warnings on cigarette packs.

    Be prepared to lose our abundant tax revenues from the sale of tobacco products, and do what the scientific and medical evidence overwhelmingly suggests.

    Tobacco is a dangerous product.  Ban it.

    (You'd probably be doing me a favour).
    - Garry J. Wise, Toronto
    Visit our Toronto Law Office website: www.wiselaw.net

    Sunday, June 17, 2012

    Video: Using Social Media for Change

    A daring social media campaign changes the conversation - and according to this video, helps win a ballot initiative by a landslide:



    - Garry J. Wise, Toronto
    Visit our Toronto Law Office website: www.wiselaw.net

    Friday, June 15, 2012

    Thursday, June 14, 2012

    140Law - Legal Headlines for Thursday, June 14, 2012

    Here are the leading legal headlines from Wise Law on Twitter for Thursday, June 14, 2012:
    - Rachel Spence, Law Clerk
    Visit our Toronto Law Office website: www.wiselaw.net