On Universal Jurisdiction, Those Pesky Spanish Judges and Canada's War Crimes Legislation

The Washington Post looks at Spain's National Court justices, who seek to hold the United States and other nations accountable for alleged war crimes and crimes against humanity, wherever they have occured, based on the legal principle of universal jurisdiction:

Judges at Spain's National Court, acting on complaints filed by human rights groups, are pursuing 16 international investigations into suspected cases of torture, genocide and crimes against humanity, according to prosecutors. Among them are two probes of Bush administration officials for allegedly approving the use of torture on terrorism suspects, including prisoners at Guantanamo Bay, Cuba.

The judges have opened the cases by invoking a legal principle known as universal jurisdiction, which under Spanish law gives them the right to investigate serious human rights crimes anywhere in the world, even if there is no Spanish connection.

... Carlos Slepoy, a Spanish-Argentine lawyer who helped pursue Scilingo, said the universal-jurisdiction cases have valuable secondary effects. Officials targeted by Spanish judges need to be careful about where they travel; Spanish arrest warrants are generally enforced throughout Europe but also sometimes in Mexico and other countries.

...Other advocates, however, point out that Israel and the United States have embraced the principle of universal jurisdiction when it suits them.

In 1960, Israeli agents kidnapped Nazi war criminal Adolf Eichmann in Argentina and tried him in Israel; he was convicted and executed.

More recently, the U.S. Department of Justice has supported efforts to have Spain pursue investigations against two alleged Nazi concentration camp guards living in the United States. The Justice Department lacks the jurisdiction to prosecute the men for crimes committed decades ago in Europe but would like to deport them to Spain to stand trial there.

See: Spain's Judges Cross Borders In Rights Cases - High-Ranking U.S. Officials Among Targets of Inquiries.

Also see Wikipedia's article on universal jurisdiction, for a good backgrounder.

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Canada Convicts Rwandan War Criminal

Earlier this week, on May 22, 2009, a 42 year-old Rwandan man was convicted in the Quebec Superior Court on seven counts of genocide, war crimes, and crimes against humanity in Canada's first prosecution under the 2000 Crimes Against Humanity and War Crimes Act.  

Canadian Press  reported on the conviction:

MONTREAL — A Rwandan man accused of murdering and raping Tutsis during that country's bloody genocide some 15 years ago has become the first person ever to be convicted under Canada's war crimes legislation.

Lawyers for Desire Munyaneza immediately said they would appeal a Quebec Superior Court ruling that found their client guilty of seven charges stemming from war crimes committed during the 1994 Rwandan genocide.

Quebec Superior Court Justice Andre Denis said he was convinced that Munyaneza was guilty of all the charges against him, making Munyaneza the first person to be convicted under Canada's Crimes Against Humanity and War Crimes Act.

Munyaneza, a 42-year-old father of two, faced seven charges related to genocide, war crimes and crimes against humanity for his role in massacres and rapes near Butare, Rwanda, between April and July of 1994.

Sections 6 and 9 of the federal Crimes Against Humanity and War Crimes Act  (excerpted below) grant jurisdiction to Canadian courts over war crimes and related offences committed outside Canada including crimes involving torture and conspiracy to commit to torture: 

OFFENCES OUTSIDE CANADA

Genocide, etc., committed outside Canada

6. (1) Every person who, either before or after the coming into force of this section, commits outside Canada

(a) genocide,

(b) a crime against humanity, or

(c) a war crime,

is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.

Conspiracy, attempt, etc.

(1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence.

Punishment

(2) Every person who commits an offence under subsection (1) or (1.1)

(a) shall be sentenced to imprisonment for life, if an intentional killing forms the basis of the offence; and

(b) is liable to imprisonment for life, in any other case.

Definitions

(3) The definitions in this subsection apply in this section.

"crime against humanity" 
«crime contre l’humanité »

"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

"genocide" 
«génocide »

"genocide" means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

"war crime" 
«crime de guerre »

"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission...

PROCEDURE AND DEFENCES

Place of trial

9. (1) Proceedings for an offence under this Act alleged to have been committed outside Canada for which a person may be prosecuted under this Act may, whether or not the person is in Canada, be commenced in any territorial division in Canada and the person may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

- Garry J. Wise, Toronto

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Summary Judgment - The Speedier Solution in Ontario Wrongful Dismissal Claims

Ontario wrongful dismissal cases can now be resolved by summary judgment under the Superior Court's simplified procedures, according to a 2008 Ontario Superior Court ruling in Adjemian v. Brook Crompton North America, which has now been affirmed by the province’s Court of Appeal.

The plaintiff, Dolores Adjemian, had worked more than 22 years for Toronto-based electric motor manufacturer Brook Crompton. She was an IT Administrator, Accounts Payable Clerk, and Inventory Receiving Clerk, with a base annual salary of just under $50,000, plus benefits. Unfortunately, economic difficulties led to downsizing at the company, and she was let go. She was given very favourable letters of reference, and four month’s pay in lieu of notice.

She felt she deserved at least 16 month’s notice, and commenced legal action.

In a May 22, 2009 article in The Lawyers Weekly, her counsel, Daniel Lublin said his client “couldn’t afford to wait” for her lawsuit to meander through the court system. Her claim seemed “open and shut,” so she moved for summary judgment under simplified procedure. She succeded.

In deciding in favour of the plaintiff, Justice Paul Perell confirmed that wrongful dismissal claims can indeed be resolved by summary judgment under simplified procedure. This is true, Justice Perell explained, even though the test for summary judgment under Rule 76.07(9) is less stringent – it is not necessary to show there is “no genuine issue for trial,” whereas for regular Rule 20 summary judgment, there is that requirement.

In fact, in simplified procedure, summary judgment is essentially mandatory under Rule 76.07(9): “The presiding judge shall grant judgment on the motion unless, (a) he or she is unable to decide the issues in the action without cross-examination; or (b) it would be otherwise unjust to decide the issues on the motion.”

There is also jurisprudence, Justice Perell pointed out, saying that the summary judgment test under simplified procedure “does not preclude the judge hearing the motion from making findings of fact including credibility findings if that can be done fairly and justly.”

Having said that, Justice Perell ruled that in this case the plaintiff not only met the relaxed summary judgment test under simplified procedure, she actually met the stricter test under regular Rule 20 – there was no genuine issue for trial here. True, the employer argued that there were three triable issues: 1.whether the plaintiff’s efforts to mitigate her damages by finding another job were adequate; 2. the nature of her employment; and 3. the assessment of her damages. Justice Perell found no substance to any of these.

On the mitigation issue, there was “overwhelming evidence” that the plaintiff had made and continues to make reasonable efforts to mitigate her loss, ruled Justice Perell. (As of the hearing date, she had applied for 120 positions in various industries and job types and had attended 9 job interviews.) The employer, noted the judge, wished to cross-examine her to establish that she could have done more, “but that is not a genuine issue for trial because mitigation need not be perfect, it need only be reasonable,” and the employer “has not remotely shown” that the plaintiff’s efforts were lacking.

Regarding the nature of the plaintiff’s employment, Justice Perell simply accepted the employer’s own characterization of it, and found that this had no negative effect on the claim. As for damages, Justice Perell found no problem with determining a fair notice period without a trial.

The judge went on to consider the jurisprudence as to the appropriate notice period for comparable situations, and was satisfied that the plaintiff’s claim of 16 months was fair. He also awarded just over $14,000 in costs, and pre-judgment interest.

This was a very speedy resolution – the plaintiff was dismissed on Jan. 24, 2008 and won summary judgment less than six months later, on June 6, 2008.

Interestingly, the fact that the case resolved so speedily also presented a problem – what if the plaintiff got a new job before the 16-month notice period was up? How were such mitigation earnings to be accounted for?

Justice Perell followed established precedent to address this issue:

Although Ms. Adjemian is entitled to judgment, her judgment has come so quickly that it comes during the period in which she continues to have an obligation to mitigate. In these circumstances, the court can impose a trust requiring her to account for any mitigatory earnings. This approach was used in Bullen v. Proctor & Redfern Ltd., supra and Correa v. Dow Markets Canada 1997 CanLII 12268 (ON S.C.), (1997), 35 O.R. (3d) 126 (Gen. Div.) and should be employed for this case.

- Bill Rogers, Student-at-Law, Toronto

Addendum on the "Migation Trust"

In Adjemian, the court did not detail how the parties were to address the "mitigation trust" applicable to the portion of the judgment sum relating to the notice period still ahead on the Judgment date.

Presumably, any earnings by the Plaintiff during the remaining notice period were to be credited against this trust. The Court, however, was silent as to the mechanics and administration of the trust fund itself.

This left considerable uncertainty, notwithstanding the favourable outcome for the Plaintiffs.

Mr. Lublin notes that in a subsequent 2009 Ontario Superior Court ruling in Cardenas v. Kohler Canada Co., the Court provided greater clarification as to the management of this "mitigation trust."

In Cardenas, Madame Justice Thea Herman ordered that settlement funds applicable to the balance of the notice period remaining as at the date of her order be paid into an interest bearing trust account, to be administered by the employer's counsel:

Damages that are attributable to the remaining portion of the notice period will be paid forthwith into an interest-bearing trust account held by Canac’s counsel. I ask counsel to work out the terms, including the terms of the payments to the plaintiffs. Failing agreement on these terms, the parties may make submissions to me.

In these circumstances, therefore, it appears that employers' counsel may find themselves acting in the dual roles of advocate and payroll administrator.

Garry J. Wise, Toronto

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Parental Authority in Quebec

On April 6, 2009, the Quebec Court of Appeal issued an interesting decision about parental authority.

In this case, the father has custody of his daughter, a 12 years old child. The child was represented by an attorney with respect to the court case pending between her parents.

At one point, as a matter of punishment, the father decided not to authorize his daughter to participate in an activity organized by her school, a trip to Quebec City. The mother was agreeing to have the child go to this trip, but she did not institute any proceedings with respect to this situation.

The child herself, represented by her attorney, petitioned the court in order to be authorized to go to this trip and, in fact, to contest the father’s decision.

According to the Civil Code of Quebec, the child is under the parental authority of both parents. Whether custody is entrusted to one of the parents or to a third person, and whatever the reasons may be, the father and the mother retain the right to supervise the maintenance and education of the children, and are bound to contribute thereto in proportion to their means.

In this case, the Quebec Court of Appeal has ruled that the decision relating to this trip was not of a routine nature, but something that is within the scope of the common right to supervise attributed to both parents.

Consequently, the father had no right to oppose a veto to that trip to Quebec.

In this case however the tribunal had not been seized by the mother but by the child herself. So, it was not court litigation on difficulty in exercising parental authority, but rather on effect of parental authority over the child.

The Civil Code of Quebec states that a minor may, with the authorization of the court, institute alone an action relating to his or her status and to the exercise of parental authority (among other situations).

Of course, the authorization to institute such court actions alone cannot be granted for reasons that are not serious, and it is true that the Court cannot be a place where all the children could contest any punishment from one of their parents (or both).

In this case, the Court of Appeal has ruled that the judge had reasonably exercised her discretionary power to authorize the child to institute her motion.

On the merit of the case, the father’s decision not to authorize the child to go to this trip to Quebec City was set aside.

This shows that, in theory, in Quebec any important decision taken by a parent with respect to parental authority could be contested in court by a minor child.

Distinct society, as we say.

- Christian Dufourd, Montreal

Me Christian Dufourd is Member of the Bar of Quebec
(Montreal section)and practices law in Montreal with Dufourd, Dion Avocats. The firm focuses on family law, civil law, immigration, criminal law and business law. He can be reached by email at cdufourd@dufourdion.com. This commentary is intended for information purposes only and does not constitute legal advice. Consult with a lawyer for information regarding your own specific circumstances.

.........................................................................

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Springtime is for Neo-Con Revisionism

We now bring you a Neo-Con Talking Points Moment.

In today's edition (brace yourselves...) we shall learn:

• George Bush wasn't an evil-doer for that long...  
• And now, President Obama's just like him (but so smooth in the delivery, you don't even notice it).
  

New York Times op-ed columist David Brooks establishes the theme, with (to put it mildly) a revisionist's perspective on the Bush era:

The Bush-Cheney period lasted maybe three years. For Dick Cheney those might be the golden years. For Democrats, it is surely the period they want to forever hang around the necks of the Republican Party. But that period ended long ago.

By 2005, what you might call the Bush-Rice-Hadley era had begun. Gradually, in fits and starts, a series of Bush administration officials — including Condoleeza Rice, Stephen Hadley, Jack Goldsmith and John Bellinger — tried to rein in the excesses of the Bush-Cheney period. They didn’t win every fight, and they were prodded by court decisions and public outrage, but the gradual evolution of policy was clear.

From 2003 onward, people like Bellinger and Goldsmith were fighting against legal judgments that allowed enhanced interrogation techniques...

Jack Goldsmith, former U.S. Assistant Attorney General in the Bush administration's Office of Legal Counsel, takes the same ball and runs the field with it in The Cheney Fallacy:

Former Vice President Cheney says that President Obama's reversal of Bush-era terrorism policies endangers American security. The Obama administration, he charges, has "moved to take down a lot of those policies we put in place that kept the nation safe for nearly eight years from a follow-on terrorist attack like 9/11." Many people think Cheney is scare-mongering and owes President Obama his support or at least his silence. But there is a different problem with Cheney's criticisms: his premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric. This does not mean that the Obama changes are unimportant. Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.

- Garry J. Wise, Toronto

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U.S. Supreme Court will Review Black's Fraud Conviction

CBC reports that "former media tycoon Conrad Black will have the chance to appeal his fraud conviction before the U.S. Supreme Court."

View Original Article

- Garry J. Wise, Toronto

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When a Garage Sale Bargain Goes Awry

Legally speaking . . .

In an unusual 2008 court decision, a judge denied the claim of a British Columbia woman to keep all that her late mother had bought for five dollars at a garage sale … but he awarded her possession of part of the job lot, an extremely rare and valuable antique Swedish coin.

Most of us have our favourite stories about buying antiques, often centering upon how we were able to turn a handsome profit on eBay as a result of picking up a little treasure “for a song” at a weekend yard sale; or an account of when the auctioneer kept on piling things into that cardboard box full of junk until he added what we’d secreting been eyeing, and our one dollar bid sealed the sale. But we would be hard-pressed to top the tale of the 1632 King Gustav II Adolph gold ducat coin and its ultimate guardian, Stephanie Manning, the plaintiff in Manning v. Algard Estate. The case was decided by the British Columbia Supreme Court just last August.

While driving her mother, Marina Ovsenek, to a cancer treatment centre in 2000, Ms. Manning stopped at a garage sale. Ms. Ovsenek often went to such sales. On this occasion she bought a box containing a brooch and five gold-coloured coins for five dollars. Until Ms. Ovsenek’s death in 2004, the contents were kept in a room full of painting supplies, assorted gardening and cook books, costume jewellery and other trinkets purchased at similar sales. In 2005, Ms. Manning’s father invited his daughter to choose what she wanted from the “painting room,” so she chose what she liked, which included the five coins.

After looking at the coins closely, Ms. Manning noticed the old dates on them, and portraits of “old-fashioned people,” so she did some internet investigation. She learned that they might be Swedish antique coins, and if so worth tens of thousands of dollars. An acquaintance, acting as her representative, contacted a coin museum in Sweden in the course of making inquiries. Shortly thereafter the West Vancouver police confiscated the coins from the acquaintance and advised that they had been stolen.

Klas-Olof Algard was a Swedish coin collector. He moved to West Vancouver in 1987. In October, 1994, he reported to police that a briefcase containing some of his coins had been stolen at a tailor’s shop. He gave police additional information about the loss of his satchel, as well as a lengthy recorded and transcribed statement on November 16, 1994. On October 7, 2005, after the coins had been seized from Ms. Manning’s agent, he gave police another statement. In March, 2006, after the coins had been returned to him, Mr. Algard died of heart failure. Therefore, the court case was between Ms. Manning who wanted her coins back, alleging that they had been purchased legally by her mother and then gifted to her by her father, and Mr. Algard’s estate, which contended that Mr. Algard never voluntarily gave up ownership of the treasures.

The proceeding focused on two issues. First, which if either of the two main statements given by The Deceased to the police should be accepted by the court as evidence. If neither was accepted, the case would be over since the Estate would not be able to prove a loss. If at least one was accepted, the second issue would have to be decided, that being whether Ms. Manning or the Algard Estate had better legal title to the coins.

Regarding the evidentiary issue, there were inconsistent accounts in the various reports given to the police by Mr. Algard, relating to the number of coins (ranging from four to seven), and whether they had been lost or stolen. Just as important was the fact that since Mr. Algard did not survive long enough to give evidence at trial, the only evidence would have to be statements he gave to the police. Aside from the conflict in their content there were other issues upon which the court had to rule relating to the reliability of the two contentious declarations, to ensure that procedural fairness prevailed. They included the statements not being given under oath; the inability of the plaintiff’s lawyer to cross-examine on their veracity; Mr. Algard’s potential motive to not be entirely truthful; and the potential for bias against Ms. Manning.

After hearing argument from counsel for each side, the court decided that the November, 1994 statement would be accepted into evidence, but not the October, 2005 statement.

Regarding the second matter, who had a better claim to the coins, the case was a classic. The court had to resolve the conflict between two principles, protection of property (favouring the Estate), and protection of commercial transactions (the purchase of the coins at the garage sale). The judge noted common law principles enunciated over the years in both Canada and the United Kingdom, and British Columbia legislation. The position of Ms. Manning was that her mother was a bona fide purchaser for value without notice, meaning that she had purchased the coins in good faith, with no knowledge that they had been lost or stolen. The principle which prevailed, however, was that a finder of lost or stolen (but not abandoned) goods acquires a right to retain them, which can be exercised against all but the true owner. In this case the true owner was the Estate.

Then why has the case gained such notoriety since its release last summer? You’ll recall that the court decided that the 1994 statement was admissible, but not the others, in particular the 2005 statement given by Mr. Algard to the police after they had recovered the coins, some ten years after the loss. In 1994, shortly after the briefcase of coins had been inadvertently left behind in the course of Mr. Algard running errands, he stated that four described coins had gone missing. In the 2005 statement, five coins were claimed to have been lost, this time including the 1632 Gustav II Adolph ducat. It’s not difficult to understand why a declaration made so many years after a loss would be excluded from evidence, where there is already a comprehensive statement made shortly after the loss. With the 2004, and not the 2005, statement accepted, the only evidence before the court was that four coins that belonged to Mr. Algard had been lost.

While it is certainly possible to infer under all of the circumstances that the fifth coin must also have been lost, there was nothing in the evidence enabling the court to infer that the coin was owned by Mr. Algard. The Estate was not able to prove that Mr. Algard had title to the coin, so its claim against the fifth coin failed. Ms. Manning’s possessory title to the rare 1632 Swedish coin was affirmed, and since no one could ever likely come forward with a better claim to the coin, she was effectively granted ownership of it. A just decision? I suppose that’s open for debate. To my thinking, if you avail yourself to the courts and the wisdom of their interpretation of law and evidence, then you should accept a well reasoned decision as constituting justice done. Fate worked in favour of the Estate when Ms. Manning’s representative made those inquiries. Ms. Manning didn’t do too badly either, given her mother’s five dollar garage sale purchase.

- Alvin Starkman, M.A., LL.B., Oaxaca, Mexico 

Alvin Starkman is a licensee of The Law Society of Upper Canada. However, this article is not intended to be and should not be relied upon as constituting legal advice or opinion. Alvin and Arlene, former Toronto residents and collectors of Canadiana, moved to Mexico in 2004. They operate Casa Machaya Oaxaca Bed & Breakfast.

.......

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January 1, 2010: Ontario Small Claims Court Monetary Limit Rises to $25,000

Transferring Actions from Ontario Superior Court to Ontario Small Claims Court

As we noted in our earlier posts on this topic, on January 1, 2010 the  monetary jurisdiction of Ontario's Small Claims Courts will rise from $10,000 to $25,000. 

Suppose you have an ongoing claim for $25,000 or less in Ontario Superior Court. What will happen to your case on January 1st? 

Will it automatically be transferred to Small Claims Court?

Apparently not. 

According to the Ontario Ministry of the Attorney General, “proceedings in the Superior Court of Justice valued at less than $25,000 will not be automatically transferred to the Small Claims Court." 

Pursuant to Section 23 of the Courts of Justice Act. however, proceedings may be administratively transferred to a Small Claims Court  if all parties consent.  

Section 23 provides:

Jurisdiction

23.(1)The Small Claims Court,

(a) has jurisdiction in any action for the payment of money where the amount claimed does not

 exceed the prescribed amount exclusive of interest and costs; and

(b) has jurisdiction in any action for the recovery of possession of personal property where the value of the property does not exceed the prescribed amount. R.S.O. 1990, c. C.43, s. 23 (1).

Transfer from Superior Court of Justice

(2)An action in the Superior Court of Justice may be transferred to the Small Claims Court by the 

local registrar of the Superior Court of Justice on requisition with the consent of all parties filed before the trial commences if,

(a) the only claim is for the payment of money or the recovery of possession of personal property; and

(b) the claim is within the jurisdiction of the Small Claims Court. R.S.O. 1990, c. C.43, s. 23 (2); 1996, c. 25, s. 9 (17).

Idem

(3)An action transferred to the Small Claims Court shall be titled and continued as if it had been commenced in that court. R.S.O. 1990, c. C.43, s. 23 (3).

If the parties do not all consent, a transfer may only be effected by an order of the Superior Court of Justice upon a motion. There may be some interesting disputes on this issue.

Why might a transfer to Small Claims Court be opposed? 

A significant concern may be that the costs incurred in a Superior Court action already exceed the maximum costs that are  available in Small Claims Court, where costs awards will  remain capped at 15% of a claim's value.  In a $25,000 suit, for example, costs awards will thus be limited to $3,750. 

There may be other tactical advantages to remaining in Superior Court - a party may wish to to retain access to certain procedures that are available in Superior Court, but not in Small Claims Courts.  

For example, documentary disclosure and production entitlements in Superior Court actions are significantly broader than those in Small Claims Court.

In Superior Court actions, each party is required to produce a comprehensive Affidavit of Documents listing all relevant documentation touching on the matters in question.  The documentary disclosure rules in Small Claims Courts are much narrower and considerably less onerous.

Rule 13.03 (2) of the Ontario Small Claims Court Rules provides:

Disclosure

(2)  At least 14 days before the date of the settlement conference, each party shall serve on every other party and file with the court,

(a) a copy of any document to be relied on at the trial, including an expert report, not attached to the party’s claim or defence; and

(b) a list of proposed witnesses (Form 13A) and of other persons with knowledge of the matters in dispute in the action. O. Reg. 78/06, s. 27.

Rule 13.05 (1) additionally empowers a Judge presiding at a Small Claims Court settlement conference to direct that certain documents must be produced:

13.05  (1)  A judge conducting a settlement conference may make any order relating to the conduct of the action that the court could make. O. Reg. 78/06, s. 27.

(2)  Without limiting the generality of subrule (1), the judge may,

(a) make an order,

....(vi) directing production of documents

Beyond that, a party may wish to remain in Superior Court for less than legitimate reasons - for example, to avoid the speedier trial of a proceeding that will likely occur in Small Claims Court.

A cautionary note - those who unreasonably resist a transfer to Small Claims Court may face potential costs sanctions under Rule 57.05 the Ontario Rules of Civil Procedure, which govern Superior Court actions:  

COSTS WHERE ACTION BROUGHT IN WRONG COURT

Recovery within Monetary Jurisdiction of Small Claims Court

57.05  (1)  If a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the court may order that the plaintiff shall not recover any costs. O. Reg. 377/95, s. 4.

(2)  Subrule (1) does not apply to an action transferred to the Superior Court of Justice under section 107 of the Courts of Justice Act. R.R.O. 1990, Reg. 194, r. 57.05 (2); O. Reg. 292/99, s. 2 (2).

Default Judgment within Monetary Jurisdiction of Small Claims Court

(3)  If the plaintiff obtains a default judgment that is within the monetary jurisdiction of the Small Claims Court, costs shall be assessed in accordance with that court’s tariff. O. Reg. 377/95, s. 4.

Disputes over transfers might be less likely if the Small Claims Court Rules change, as they did in British Columbia when the B.C. Small Claims Courts' monetary limit was increased. 

B.C. Small Claims matters are now subject to three different procedural tiers, depending on the amount claimed in a lawsuit.

Will that happen in Ontario? There’s no word yet from the Ministry about whether there will be any significant new Small Claims Court Rules, and if so, what they might be. 

Stay tuned...

- Garry J. Wise and Bill Rogers, Toronto

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Brian Mulroney Cross-Examined

Oliphant Commission lead counsel Richard Wolson conducted a tenacious, but polite cross-examination of former Prime Minister Brian Mulroney on Thursday.

Mr. Wolson focused in his questioning on Mr. Mulroney's failure to fully disclose the nature and extent of his ongoing business dealings with Karlheinz Schreiber when Mr. Mulroney gave discovery evidence in his 1996 lawsuit against the federal government.

Mr. Mulroney reiterated throughout that he answered the specific questions asked on discovery, and in accordance with his lawyers' instructions at the time, did not volunteer information in the absence of a specific question.

CBC provides excerpts of the testimony at Lawyer challenge Mulroney's 1996 testimony during Airbus lawsuit:

Wolson pressed Mulroney, asking about his response to the question of whether he maintained contact with Schreiber after he left office.

Mulroney responded in 1996 that from time to time he and Schreiber had met for coffee, but didn't discuss their business relationship or the three cash payments Mulroney received in 1993 and 1994 at three hotels.

Wolson asked Mulroney if — when he testified in 1996 that he had coffee with Schreiber twice — he was "being totally fulsome, forthright, telling the whole truth and nothing but the truth."

Mulroney answered: "I was truthful in answering the specific question, which was 'Did you maintain contact with Mr. Schreiber?"

Had the question been asked whether he had a business relationship, Mulroney said he would have responded, yes, but that question never came in 1996.

"Never came because no one knew about it but you and Schreiber and [Fred] Doucet and someone in Germany. That's why it never came," Wolson responded.

"It never came because, as I say, the high-priced talent that had been retained by the government did not ask me the question," Mulroney said.

Mulroney said under Quebec law, he was under no obligation to volunteer any information.

Wolson asked if he thought Mulroney, as a former prime minister, should have testified that he had a "legitimate business relationship" with Schreiber.

"I indicated to you exactly what I was told in those circumstances from my lawyers — answer the questions truthfully. Do not volunteer information," said Mulroney.

But Wolson asked Mulroney why, if he wasn't there to volunteer information, he testified that Schreiber had retained former Liberal cabinet minister Marc Lalonde.

"How do you explain the difference? You're volunteering information about a retainer of Mr. Lalonde, not having been asked, but you don't say anything about your retainer [with Schreiber]?"

Mulroney told Wolson that Lalonde was specifically involved in the relocation of the Bear Head project to Montreal and it was in that context he mentioned him.

Later, Wolson said he could see why Mulroney might be reluctant to admit taking the money, "because it would have been like putting gasoline on a fire,”

"But I don't understand why you can't admit that you simply didn't tell him for that reason, because it would have just spread like wildfire, this poisonous atmosphere that existed."

"The answer is that he never asked me the question," Mulroney said.

He said he was in a terrible situation at the time of the Airbus accusations.

"The nine lawyers sitting there … out to crush me and my family … this was not conducive to a friendly exchange of information or compromise.

"I was fighting for my life and the honour of my family."

Complete video of Mr. Mulroney's testimony at the Oliphant Commission is available at CPAC.

Students of the adversarial process will not want to miss this video. It provides a rare example of a masterful cross-examination of an extremely adept witness in a Canadian legal proceeding.

- Garry J. Wise, Toronto

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Rachel's Bits and Briefs

Here are a few legal "shorts" to keep you busy over a (hopefully) warm long weekend:

• France Passes First Bill to Cut Internet Connection of Illegal Downloaders - Yaboo Canada News reported Tuesday that legislators in France have passed a bill to form what may be the first government agency to track and discipline online pirates. 

The bill proposes to cut the Internet service of those who frequently download films and music illegally:

…International music labels, film distributors and artists have hailed the bill as a decisive step in combating online piracy in France, where CD and DVD sales have plummeted 60 per cent in the last six years.

Some critics contend that users downloading from public Wi-Fi hotspots or using masked IP addresses might be impossible to trace. They say the law also misses the point by targeting traditional downloads at a time when online streaming is taking off, for example.

• Busted for Boppin’ - Twenty-five years after the release of the classic dance film “Footloose” The Chillicothe Gazette reports that a 17 year-old Ohio student, who attends a Christian School that has banned dancing, has been “busted for boppin’” at another High School’s prom dance. This deceptive dancing has resulted in suspension. Kevin Bacon would be proud.

• “Norman” – Another Wal-Mart Lawsuit - Canoe Canada News reports that a resident of Louisiana, New Orleans recently received quite the shock while shopping at her local Wal-Mart:

Rebecca White says in her lawsuit that employees at a Wal-Mart in Abbeville let a rat-tailed rodent known as a nutria run loose and scare her. She says that not only did employees know it was in their store, but gave it a pet name, Norman, and failed to warn shoppers.

For those of us who don’t know what Nutria are, the report paints a vibrant picture:

Nutria have bright orange buck teeth and can weigh up to 18 pounds. Would-be fur farmers in 22 states imported them in large numbers in the 1930s and ‘40s, then released them when they proved unprofitable. They proliferated in south Louisiana.

White is asking for compensation for suffering, pain, fear, mental anguish, disabling injuries and medical expenses currently alleged of $2,000.00.

• Queens Park Commits Funds to Save 9,000 Daycare Spaces - Before most Canadians had heard of Stephen Harper (January 2006) they had heard of child-care funding. Parent Central reports that more than $63 million in federal child-care funds are set to run out next March 31^st, 2010. No promise of continuing funding was made in the recent federal budget. According to Parent Central, "child-care operators were reluctantly preparing to chop spaces starting next fall.” Queen’s Park recently announced that the Provincial Government will step up with an additional $18 million in funding, estimated to save as many as 9,000 Provincial child-care spaces.

• Ontario Justice of the Peace Accused of Sexual Assault - The Toronto Starrecently reported that a Brampton, Ontario Justice of the Peace alleges she was sexually assaulted by another J. P. at the Court:
  

  It was a deliberate full-hand grab and squeeze," she told a commission of inquiry yesterday. "By the time I had turned around he retreated to his office.

  A public hearing is determining if Justice of the Peace Vernon A. Chang Alloy should be removed from office or otherwise disciplined for his alleged conduct.

• Ontario Attorney General Goes Higher Tech - Ontario's A.G. recently updated its website's “List of Ontario Court Addresses.” The page now provides location maps (powered by Google) to show the exact location of each court address. In addition, users may now choose to search by Municipality, and the site provides a hyperlink to each address, that when clicked on, links users to a map of the Court and general information including the telephone numbers of each court office.

Enjoy the long weekend.

- Rachel Spence, Legal Assistant, Toronto

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

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More on Parental Alienation

Globe and Mail Justice Reporter, Kirk Makin, continues to follow the parental alienation controversy.

Today he reports on an interview with Queen's University law professor Nicholas Bala, who has completed a study on the "syndrome:"

An escalation in parental alienation allegations is draining valuable courtroom resources, a major study of 145 alienation cases between 1989-2008 concludes.

"Access problems and alienation cases - especially those which are more severe - take up a disproportionate amount of judicial time and energy," said the study, conducted by Queen's University law professor Nicholas Bala, a respected family law expert.

"One can ask whether the courts should even be trying to deal with these very challenging cases.

Prof. Bala said that the notion of parental alienation syndrome, coined in 1987 by U.S. psychiatrist Richard Gardner, is falling steadily into disrepute.

Professor Bala's study also addresses broader issues of gender equality before Ontario's family courts:

The study also urged the justice system to enforce access orders more rigorously for the sake of its own credibility.

It said that the relatively lax enforcement of access - an issue that primarily affects fathers - contrasts sharply with zero tolerance policies in domestic abuse cases and enhanced enforcement of child and spousal support orders.

The juxtaposition can convince fathers that the system is biased against them, Prof. Bala said.

"Just as feminists have some very important and valid criticisms of the family justice system, so do fathers' rights advocates," he said.

See: Parental alienation cases draining court resources

- Garry J. Wise, Toronto

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Update: Bill 133 Passes - Family Statute Law Amendment Act, 2009

Bill 133, Ontario's Family Statute Law Amendment Act, 2009, was carried in its Third Reading on May 7, 2009, and will become law upon receiving Royal Assent.

The Bill enacts significant amendments to Ontario's family law regime.  Highlights include changes to:

• the manner in which spousal pension entitlements will be calculated and divided; specifically, the Bill requires pension plan administrators to provide calculations of the "imputed value of a pension entitlement for family law purposes", and allows for immediate payment of lump sums to non-member spouses from pension plans in satisfaction of their pension division claims;
• the calculation of pre-marital assets and liabilities under the Family Law Act;
  
• procedures for applying for domestic restraining orders;
• procedures for change of name applications for children
• custody applications by non-parents, who will now be required to file with the courts police record checks and reports by children's aid societies as to any involvement they have had with such custody applicants.

The final version of the Bill 133 is online here.

- Garry J. Wise, Toronto

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Lawyers Without Rights

Times Online reports on a London exhibition commemorating the Jewish lawyers of Nazi Germany.

Representatives of the Law Society and Bar Council also gathered for the event at Temple Church, where the exhibition "Lawyers Without Rights" will be on display until July 31.

In the keynote address, Mr Justice Beatson spoke movingly about the persecution suffered by German Jewish lawyers, which led to an outright ban on practicing law in 1938.

Many of these later perished in the Holocaust but Mr Justice Beatson - co-author of a book on German Jewish émigré lawyers - also spoke of the many accomplishments of those who survived.

- Garry J. Wise, Toronto

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Obama'a SCOTUS Shortlist

According to Ben Fuller of the Associated Press, the President has narrowed his potential Supreme Court nominees to a shortlist of six:

The six names confirmed as being under review by Obama include three judges, two members of his administration and one governor.

Officials familiar with Obama's deliberations say other people are also being discussed, including names that have not triggered public speculation.

Among those Obama is considering are Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood. California Supreme Court Justice Carlos Moreno is also under review by Obama.

Sources familiar with Obama's deliberations confirmed the names to The Associated Press on condition of anonymity because no candidates have been revealed by the White House. The confirmation amounts to the first time any name has been directly tied to Obama.

- Garry J. Wise, Toronto

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

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