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
Friday, June 29, 2012
140Law - Legal Headlines for Friday, June 29, 2012
- Adultery & Divorce
- Don’t cheer John Roberts
- Overtime Class Actions: Ontario Court of Appeal Releases Trilogy of Judgments
- Lunch at the Supreme Court Cafeteria (with tweets)
- Quoteworthy (lol):
@SarahPalinUSA - Obama lied to the American people. Again. He said it wasn't a tax. Obama lies; freedom dies. - Man convicted of violating copyright for linking to video content
- Toronto woman pleads not guilty to Holocaust fund fraud
- Where next for John Roberts and the Supreme Court?
- North America: The Next Emerging Market for Legal Services
- NZ Court Rules Kim DotCom Search Warrants Illegal
- Shaw sued for wrongful dismissal by former executive, fires back ... - Financial Post
- Alberta Report on Private Sector Privacy Breaches
- New Zealand high court: MegaUpload raid was illegal
- Lies About Military Honors Not Illegal, Court Finds
- Full text of Supreme Court ObamaCare ruling:
- The US Supreme Court upholds "Obamacare" health reform law
- Rachel Spence, Law Clerk
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Movin' to Canada
... to escape socialist Obamacare.
Or as the indispensible Wonkette put it:
Or as the indispensible Wonkette put it:
Anti-psychotic medications paid for by Obamacare: priceless.
- 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:
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).
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
Thursday, June 28, 2012
140Law - Legal Headlines for Thursday, June 28, 2012
- US Supreme Court upholds Obama health care law with 5-4 ruling
- Apple wins order blocking sales of rival Samsung tablet
- Study: ‘Stand your ground’ laws result in an additional 4 to 7 killings per month
- EU court upholds fines against Microsoft
- Two Lawsuits Challenge the Lack of Air-Conditioning in Texas Prisons (New York Times)
- Canada's new citizen's arrest rules to come into effect
- Article with Ontario Ombsudsman
- Accused 9/11 conspirator asks UN to investigate torture allegations
- Four ways the Supreme Court could split the difference on health care
- Lawyers Will Use Databases to Predict Case Outcome
- Bernard Madoff's brother to plead guilty in criminal fraud case
- Tax amnesty offered to Americans in Canada
- Another decision that linking is, well, just linking
- Rachel Spence, Law Clerk
Visit our Toronto Law Office website: www.wiselaw.net
Wednesday, June 27, 2012
140Law - Legal Headlines 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
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Tuesday, June 26, 2012
140Law - Legal Headlines for Tuesday, June 26, 2012
- CRA claims priority on holdback; case tests Ontario construction lien system - Daily Commercial News
- Alito Stands Up For Mandatory Life Sentences For Juvenile Murderers
- Kansas Doctor Loses License For Protecting Privacy Of Abortion Patients
- MLSE bid from Rogers, Bell triggers concern from independent operators
- No rush on Khadr transfer, U.S. ambassador says
- Feds fill Ontario Court of Appeal vacancy - Canadian Lawyer Magazine
- Ontario Court of Appeal clarifies costs orders against lawyers - Law Times
- Dialogue on doctor-aided suicide needed: CMAJ editorial
- George Zimmerman Files New Motion for Bond
- What to look for in the U.S. High Court’s historic health-care ruling
- US Supreme Court Bars Mandatory Life Sentences for Juveniles
- Inquiry into Manitoba judge sex scandal to begin
- US Supreme Court Again Rejects Corporate Campaign Spending Limits - Citizens United Ruling Affirmed
- Supreme Court guts most of Arizona’s anti-immigration law
- US Supreme Court health care ruling looms
- Sandusky to appeal convictions
- Rachel Spence, Law Clerk
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Monday, June 25, 2012
140Law - Legal Headlines for Monday, June 25, 2012
- Judge upholds Indiana Facebook ban for sex offenders - Fox News
- Manitoba judge sex inquiry hearings set to begin June 25
- Divorce by baby boomers is rising
- Who pays when judges screw up? - London Free Press
- Supreme Court rejects lawsuit of man killed by city tree
- Magnotta's lawyers set 2013 date for preliminary hearing
- Magnotta and the possibility of the insanity defence
- Employer has duty to protect employee’s reputation in circumstances surrounding termination
- Woman hit in face by baseball sues Little League player
- Why Nigerian e-mail scams are so crude and obvious
- Catholic official found guilty of covering up sexual abuse by priests
- Jerry Sandusky convicted of child sexual abuse
- Rachel Spence, Law Clerk
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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:
If you believe that you have been wrongfully dismissed, please contact a lawyer who can advise you as to your rights and entitlements.
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
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Friday, June 22, 2012
140Law - Legal Headlines for Friday, June 22, 2012
- CBC: Karla Homolka a mom of 3 living in Caribbean, ebook says
- Magnotta to be defended by Toronto lawyer Luc Leclair - CP24
- Drone strikes threaten 50 years of international law, says UN rapporteur
- Ont CA: Employee entitled to full severance under employment agreement, despite finding new job
- Magnotta appears at Montreal courthouse
- Prosecutors ask for psychiatric care not prison for Breivik
- Zimmerman: Trayvon Martin threatened my life
- Louisiana Law: Sex offenders must disclose their criminal status, history on Facebook, social media sites
- Quebec's language police crack down on stores
- Slice of Slaw, an E-Book Using the McCue Method
- Spain chief justice resigns over embezzlement accusations
- Podcast: Legal Ethics and Technology: Proposals of the ABA Ethics 20/20 Commission
- Ontario cracks down on condo window pane rules
- Supreme Court overrules FCC on TV swearing ban
- SCOTUS: Saving the most controversial for last - will rule on healthcare, immigration next week
- Jury begins deliberations in trial of Jerry Sandusky
- Of course the US Supreme Court is political (Ezra Klein)
- Australia court fines Apple for misleading consumers
- Rachel Spence, Law Clerk
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Thursday, June 21, 2012
140Law - Legal Headlines for Thursday, June 21, 2012
- Scales of Justice: Obesity & Child Custody
- California ethics opinion warns lawyers that boastful social media postings can be improper solicitation
- Trial by tweet: B.C. Supreme Court to open up courtrooms to social media
- Dismemberment suspect due in court
- Ecuador's president: No decision yet on Assange asylum
- Fathering Court Helps Ex-Cons Connect with Kids
- RIM shares fall as job cuts begin at BlackBerry maker
- Lawline Opens its Full CLE Catalog to Free Access
- Federal judge questions Apple's request for injunction against Motorola
- Jerry Sandusky won't testify in child sex abuse case
- Khadr's lawyers in Ottawa to decry transfer delay
- Lawyer’s trust account ledgers not necessarily subject to solicitor-client privilege
- Prosecutorial Misconduct? Rape Case in Crown Heights to Be Dropped, Lawyers Say
- Mortgage rules to be tightened further by Ottawa
- House panel finds US AG Eric Holder in contempt
- Sanford police chief fired in wake of Trayvon Martin case (CNN)
- 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
- Liberia's Taylor to appeal war crimes conviction
- Luka Magnotta pleads not guilty in body parts case
- Pakistan court disqualifies prime minster from office
- Don't call it 'suicide,' says right-to-die advocate
- Only 55 Percent of 2011 US Law Grads Had Full-Time, Long-Term Legal Jobs, Analysis Shows
- Copyright bill finally clears Commons
- Calif. bar: Illegal immigrant deserves law license
- Obese Ottawa dad loses custody of kids
- LSAC, ABA Step Up Oversight of Law School Student Data
- Defense: Sandusky may testify
- Ecuador Says Assange Seeks Asylum at Embassy
- WikilLeaks founder Assange seeks asylum in Ecuador
- Indian father shows no remorse after beheading daughter over ‘affairs’
- Baglow v Smith: appeal court sets aside summary judgment and orders trial
- How many times can a contractor sue the owner under the same construction contract?
- Why Microsoft has to build its own tablet
- Judge in 9/11 case must recuse himself, lawyer for terror suspect says
- Bernardo's ex-lawyer says Magnotta's lawyer will have 'unusual challenges'
- Referendum on Phoenix Coyotes agreement can go forward (The Associated Press)
- Rachel Spence, Law Clerk
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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
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
The Steroid Trials
Can we all agree that going after athletes that use steroids is a huge waste of time and money?
Yes, I believe we can.
Yes, I believe we can.
- 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).
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
Tuesday, June 19, 2012
140Law - Legal Headlines for Tuesday, June 19, 2012
- Luka Magnotta to appear in Montreal courthouse
- Suspect in dismemberment killing arrives in Canada
- Radiohead stage collapse: Four companies asked to comply with investigation
- Presentation on Cloud Computing for Lawyers
- LAWPRO 2011 Annual Review: Claim Numbers & Costs Reach New Highs
- Lawyer seeks certainty through sperm bank - Law Times
- Ontario coroner calls for mandatory helmets for all cyclists - CTV.ca
- Rate of wrongful conviction probably much higher than thought: study
- Class Action Suit Against Supermax Prisons : Treatment Not Fit for Dogs
- The Latest Secrets of Super Negotiators
- Copyright Bill C-11 passes Third Reading in House of Commons
- Lawsuit claims Hebrew National hot dogs aren't kosher
- Roger Clemens acquitted on all counts
- Conrad Murray: 'I feel like a POW' - Doctor convicted in Michael Jackson's death in jail until Oct. 2013
- Rachel Spence, Law Clerk
Visit our Toronto Law Office website: www.wiselaw.net
Monday, June 18, 2012
140Law - Legal Headlines for Monday, June 18, 2012
- John McCain Calls US Supreme Court 'Uniformed, Arrogant, Naive' for Citizens United
- Bill to raise bar for JPs gaining traction among lawyers - Law Times
- "It is commonplace for law firms to have their emails read during negotiations for ventures in China..."
- Justice Ginsburg: Turbulent Times at Supreme Court
- Parents’ lawsuit: Third-grader forced to bathe at Texas school
- Scalia, Garner warn judicial decisions leading to 'descent into social rancor'
- Police: Parents killed their 17 year-old daughter's pimp - U.S. News
- Ginsburg: Sharp disagreement on SCOTUS cases
- UK court rules anorexic woman can be fed against her will
- Judge allows defense to argue Jerry Sandusky has psychiatric disorder - U.S. News
- B.C. judge strikes down ban on physician-assisted suicide | The Raw Story
- Top 50 Law Professors on Twitter
- Section 13 of the Canadian Human Rights Act Repealed!?
- Rachel Spence, Law Clerk
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
140Law - Legal Headlines for Friday, June 15, 2012
- Top 50 Law Professors on Twitter
- Section 13 of the Canadian Human Rights Act Repealed!?
- Court Says 1st Amendment Protects Lawyer’s Blogging
- Judge Overturns $13.8M Award to Lawyer and Wife for Online Libel
- Blow to Transition as Court Dissolves Egypt’s Parliament
- Allan Stanford Sentenced to 110-Year Term in $7 Billion Ponzi Case
- Federal Judge in NY nixes anti-gay marriage law
- Retired Quebec judge found guilty of killing wife
- ONCA Overturns Summary Judgment in Baglow v. Smith
- Madame Justice Lori Douglas: Manitoba judge denies sex allegations against her
- Madame Justice Lori Douglas: Manitoba judge in nude photo scandal says she's a victim
- Wikileaks' Julian Assange Loses Final Extradition Appeal
- Blog site ‘flame war’ to go to trial - Dr. Dawg defamation suit reinstated by Court of Appeal
- Former BC Deputy AG: Justice system culture must change
- B.C. court to rule on doctor-assisted suicide
- Supreme Court hears appeal in case of abused woman who hired hitman
- Top court to hear Toronto riding election case in July - CBC.ca
- Rachel Spence, Law Clerk
Visit our Toronto Law Office website: www.wiselaw.net
Thursday, June 14, 2012
140Law - Legal Headlines for Thursday, June 14, 2012
- Law Society's Innovative Website Helps Parents and Children Involved in a Family Breakdown
- Judge: Release Travyon Martin autopsy
- Real estate lawyers: This fraud is for you!
- Lance Armstrong Faces New Doping Charges
- B.C. Civil Resolution Tribunal Act speeds through legislature
- Federal Prosecutors Drop Case Against John Edwards
- Ontario passes human rights law to protect transgender people
- Girl, 15, charged in human trafficking case remanded
- John Edwards will not face a new trial after the Justice Department said it dismissed the remaining charges against him
- Same-sex couples sue over adoption rights in N.C
- Lawyer: Mubarak fears prison doctors want him dead
- Demjanjuk's attorney files complaint against doctors
- Quebec students seek injunction on law limiting demonstrations
- Magnotta will be held in Germany pending extradition
- Bay Street law firm, Cassels Brock, takes on 164 lawyers - Business - Macleans.ca
- Ex-Murdoch aide Rebekah Brooks in court
- When Justices Google
- First They Came for the Big Gulps
- Bob Rae won't seek Liberal leadership: CTV News
- Judge Gets Behind Cleveland’s Trans Fat Ban
- Rachel Spence, Law Clerk
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