Sunday, October 29, 2006

Weekend Legal Headlines

Here are this weekend's legal news headlines.

- Garry J. Wise, Toronto

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YouTube Deletes Video: Enforces Networks' Copyright Demands

In unrelated reports today, both Raw Story and AmericaBlog advise of recent action by YouTube to remove alleged copyright-infringing video files from the YouTube service.

AmericaBlog's John Aravosis noted today:

Unfortunately I can't give you the video because CBS is making YouTube take down video we post there, claiming copyright infringement, so we're no longer posting CBS's video. I can however quote CBS's Bob Schieffer from this morning's Face the Nation....
Raw Story linked to this article from Idealog, reporting that YouTube has acceded to Comedy Central's demand that the omnipresent Jon Stewart and Stephen Colbert videos be removed from the popular video-sharing portal:

I received a couple of emails from YouTube this afternoon (see below) notifying me that a third party (probably attorneys for Comedy Central) had made a DMCA request to take down Colbert Report and Daily Show clips. If you visit YouTube, all Daily Show, Colbert Report and South Park clips now show "This video has been removed due to terms of use violation."

For a long time, Comedy Central has passively allowed the sharing of online clips of its shows - because let's face it, it's helped them generate the kind of water cooler talk that has made them a ton of money. In this Wired Interview, Jon Stewart and Daily Show Executive Producer even encouraged viewers to watch the show on the Internet...

The full text of YouTube's notice is reproduced in the Idealog story. A partial excerpt is below:


Dear Member:This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by Comedy Central claiming that this material is infringing:

...Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to avoid future strikes against your account, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube's copyright policy, please read the Copyright Tips guide. If you elect to send us a counter notice, to be effective it must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements)...

I claim no special expertise in the area of Copyright Law, but to this eye, YouTube's action, which closely follows its acquisition by Google, appears unquestionably lawful, and perhaps, comes surprisingly late in the day.

While I've thoroughly enjoyed the ease of access to these materials, I've often wondered why these videos were so readily available, without contest by the networks, on numerous blogs and video sites online.

In fact, Crooks and Liars has become one of the Internet's most influential blogs (and is generally my first stop in blog travels), precisely because the most timely of these materials are regularly to be found there. This is often a very good predictor of the news issues that are likely to catch fire in the mainstream press in the days ahead.

While this new video-sharing clampdown is reminiscent of the music industry's successful reign-in of Napster, there is in my view a substantive difference. The video materials that will now disappear clearly occupy a significant place in the public discourse about serious issues - we are not talking about dance tunes here, we are talking about video regarding major world developments as they happen.

Whether it was the Pacific tsunami, Hurricane Katrina or the more mundane breaking news and scandals du jour, video was almost instantly available online via blogs in recent years. We have been better informed as a result. This has led to greater governmental accountability, and in the case of the tsunami, a groundswell of public involvement and outpouring of finacial aid.

While I understand, of course, that Jon Stewart "news" videos do not equate with immediate reports of natural disasters and major news developments, it is now clear that all copyright-protected video is likely to have online distribution highly circumscribed, and that this effect will be seen almost immediately.

While recognizing the legitimate ownership claims of the networks, it is nonetheless undeniable that the marketplace of ideas will suffer from these enforcement actions.

Critical information will simply be harder to find, if not altogether impossible. But perhaps, more importantly, online video-sharing has allowed viewers a brief opportunity to decide which issues, interviews or commentaries should rise to the surface for a closer look.

This essentially have given rise to a populist sharing of that most important of editorial functions - framing the issues that are important - and has led to major democratization of the very process that decides which news matters (and which does not).

These actions, when considered in conjunction with a recent Japanese appellate court decision, holding that mere reproduction of news headlines is a copyright infringement, set the stage for a looming battle globally over the role private citizens will be permitted play in the online dissemination of information about public affairs.

Under Canadian copyright law, an exception to infringement claims is provided for "Fair Dealing."

This summary from the Canadian Intellectual Property Office (CIPO) describes the "thin line" between fair use and infringement, in the context of news reporting:

People such as critics, reviewers and researchers often quote works by other authors in articles books, and so on. Are they infringing copyright? Not necessarily. The Copyright Act provides that any "fair dealing" with a work for purposes of private study or research, or for criticism, review or news reporting is not infringement. However, in the case of criticism, review, or news reporting, the user is required to give the source and the author's, performer's, sound recording maker's or broadcaster's name, if known.

The line between fair dealing and infringement is a thin one. There are no guidelines that define the number of words or passages that can be used without permission from the author. Only the courts can rule whether fair dealing or infringement is involved...

We'll definitely be watching this issue as it emerges. There is a legitimate boundary to be drawn, but when it comes to sharing and distribution of public affairs video online, no sharing would be far too little.

- Garry J. Wise, Toronto

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Thursday, October 26, 2006

Thursday Legal Headlines

Today's news:

-Garry J. Wise, Toronto

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Wednesday, October 25, 2006

Wednesday Legal Headlines

Leading today's news is the New Jersey Supreme Court's decision, affirming equal marital rights (but not necessarily the right to marry) for same-sex couples. See the links below for more...

Our other daily headlines follow:

- Garry J. Wise, Toronto

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Tuesday, October 24, 2006

Ontario Judge: Canadian Anti-Terrorism Law Unconstitutional

For the second time in less than a week, the Ontario Superior Court has found provisions of Canada's Anti-Terrorism Act to be unconstitutional:

OTTAWA (AFP) - A judge threw out Canada's legal definition of terrorism, saying it violated the constitutional rights of a Canadian Muslim accused of links to a foiled British bomb plot.

In his ruling, Superior Court Justice Douglas Rutherford said Canada's Anti-Terrorism Act defines terrorism by what motivates it, and so wrongly attempts to police people's thoughts, religious beliefs or opinions.

Mohammed Momin Khawaja, a 27-year-old software developer linked to a major anti-terror sweep in Britain in 2004 that was said to have averted a major bomb attack, was the first person charged under the act after his arrest that year.

Speaking to CTV News, Khawaja's lawyer, Lawrence Greenspon discussed today's ruling:

Greenspon argued the judge's ruling showed the mistake of passing what he argued was politically-motivated legislation.

"How many times does the Canadian government have to apologize to the next generation, or the generation after, before we learn the lesson of history which is you don't pass legislation in response to politics," he told CTV Ottawa outside the Superior Court.

On Tuesday, Justice Douglas Rutherford of Ontario Superior Court "severed" the clause in the Anti-Terrorism Act dealing with ideological, religious or political motivation for illegal acts.

Meanwhile, in Ottawa, a Parliamentary Committee is urging renewal of the very provisions struck by the Court today, according to CTV:

Two controversial anti-terrorism powers given to police in Canada after 9/11 are set to expire this year -- but a parliamentary committee says they should be extended to 2011 for the sake of national security.

According to The Toronto Star, the public safety committee says the measures should be reviewed again once Canada has a decade of experience with them.

Strange times, indeed.

More at the links below:

- Garry J. Wise, Toronto

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Tuesday Legal Headlines

Note: Blogger (the site that hosts this Blog) was down yesterday, and swallowed Monday's Headlines when I tried to post them. The day's big headline, of course: Skilling Sentenced to 24 Years in Prison. As to the rest of yesterday's offerings, they are lost, but not forgottten...

We have separately discussed today's Superior Court decision, finding provisions of Canada's anti-terrorism law unconstitutional.

Today's remaining legal headlines follow:

- Garry J. Wise, Toronto

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Sunday, October 22, 2006

Weekend Legal Report

We have been experimenting with a new format this week. In addition to our usual case updates and reports, we will be posting links to legal headlines and other stories of interest on a regular basis, perhaps daily.

If you have any thoughts about how you'd like to see this done, shoot us a comment.

And now, on to the weekend's legal pickings...

- Garry J. Wise, Toronto

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Friday, October 20, 2006

Friday's Legal Headlines

Lots of interesting items today:

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Thursday's Legal Headlines

Quite a bit today...

- Garry J. Wise, Toronto

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Thursday, October 19, 2006

Wednesday Legal Headlines

The good, the bad, the just too bizarre... Oh, and Yoko too.

-Garry J. Wise, Toronto

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Wednesday, October 18, 2006

Honda and Keays Appeal: Court Rolls Back $500,000 Punitive Damages Award against Honda

An update on Honda and Keays, originally discussed here:

An unprecedented $500,000.00 punitive damages award against Honda in this wrongful dismissal action has been decreased to $100,000 by the Ontario Court of Appeal.

Notwithstanding the reduction in the damages awarded, the case remains extremely important and will be of significant influence in subsequent cases considered by Ontario courts.

With this decison, the Ontario Court of Appeal specifically acknowledged the appropriateness of punitive damages awards against employers who discriminate, harass or fail to accommodate disabled employees. The Court also raised the bar as to the amount of punitive damages to be awarded in such cases, and signalled significantly increased exposure for employers found to engage in such misconduct.

Mr. Keays was employed at Honda Canada for 14 years. At trial, the Court found that for the final seven months of his employment, he was subjected to harassment and discrimination by his employer, which had refused to accomodate Mr. Keays' disability due to Chronic Fatigue Syndrome.

At trial, the Ontario Superior Court of Justice held that Mr. Keays had been constructively dismissed, and awarded damages against Honda for wrongful dismissal and for its bad faith in connection with the termination. The trial Court awarded the further sum of $500,000.00 in punitive damages, based on "Honda's outrageous mistreatment of their long term employee."

In reducing the original punitive damages award, the Court of Appeal balanced the legitimate objective of "punishing" the employer against a requirement of proportionality based on the specific facts of the case.

The Ontario Court of Appeal found that $500,000 was not a "rational" punishment for Honda Canada's misconduct, after weighing the length and severity of the harassment and discrimination endured by Mr. Keays, considering the other damages awarded to him, and reviewing the range of punitive damages awards in comparative matters.

The Court, however, did find that punitive damages were mandated in this matter:

...the conduct by [Honda] was planned and deliberate and designed to intimidate and ultimately terminate the employment of a particularly vulnerable employee.
In a 2-1 decision, the Court of Appeal concluded that punitive damages in the amount of $100,000 were appropriate. In a dissenting opinion, Mr. Justice Goudge upheld the original $500,000.00 award.

While perhaps less groundbreaking than the original trial judgment, the Court of Appeal's ruling in favour of Mr. Keays sends a strong message that Ontario courts will now award significant punitive damages against employers who harass, discriminate or fail to accommodate the medical requirements of disabled employees.

Excerpts from the Court of Appeal's decision are below:

The punitive damage award in this case is on the same scale as awards in Whiten [$1 million] and Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 [$800,000]. Punitive damage awards in other wrongful dismissal cases have been far more modest even in the face of serious misconduct such as slander of the employee. The awards in such cases have been in the range of 15,000 to $50,000 and, rarely, up to $75,000.

In my view, a punitive damage award on the scale imposed in this case can be justified only by extraordinary circumstances of a similar nature to those in Whiten and Hill. Since Whiten, like this case, is a contract case, I found it to be the most reasonable comparator. Thus, I think it helpful in considering the application of the factors identified in Whiten, to bear in mind the facts of Whiten as they compare to this case.

Another factor mentioned in Whiten as part of the proportionality analysis is the need to consider the totality of all other penalties including compensatory damages imposed on the defendant. In this case, the trial judge had to bear in mind that he had already increased the damages for wrongful dismissal in accordance with Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 for essentially the same conduct that attracted the punitive damage award. The trial judge stated that he was taking into account "all the circumstances, including the compensatory awards already made", but it is unclear on what basis he did so.

The final factor to be considered is the need for the punitive damage award to be proportional to the advantage wrongfully gained. As the court held in Whiten at para. 124: "A traditional function of punitive damages is to ensure that the defendant does not treat compensatory damages merely as a licence to get its way irrespective of the legal or other rights of the plaintiff." Even accepting the trial judge's finding that the appellant wanted to terminate the respondent because his prolonged absences were interfering with the smooth running of the operation, there is nothing on the record to show that the appellant saw the possibility of wrongful dismissal damages as nothing more than a licence fee.

I conclude by returning to the comparison of this case to Whiten. Two factors stand out when comparing the two cases. First, in Whiten there was a two-year period of escalating misconduct up to the trial. Here the misconduct was for no more than seven months and is largely focused on the events of March. I have already referred to the trial judge's mischaracterization of a five-year period of outrageous conduct. Although the trial judge identified one instance of late disclosure of a letter in the conduct of the trial, this does not extend the period of misconduct by Honda to the five years referred to by the trial judge. Second, in Whiten, the defendant persisted in its course of conduct, based on a theory that the plaintiff deliberately set the fire, in the face of repeated findings from its own experts and advisors that the fire was accidental. Binnie J. described the defendant's attitude to the plaintiffs at para. 4 as "harsh and unreasoning opposition" and an attempt to "exploit a family in crisis". That is not the case here. The appellant had advice, albeit wrong and based on incomplete information, that caused it to question the respondent's disability and it had, for almost a year, accommodated his absences.

I come then to the difficult problem of assessing the quantum of punitive damages bearing in mind the overarching principle that the award must be "that amount, and no less, [that is] rationally required to punish the defendant's misconduct" (Whiten at para. 96, emphasis in original).

Bearing in mind the trial judge's findings that can be supported by the evidence, and in particular the findings that the conduct by the appellant was planned and deliberate and designed to intimidate and ultimately terminate the employment of a particularly vulnerable employee and that the appellant was aware of its continuing duty to accommodate, an award in excess of those awarded in other wrongful dismissal cases is appropriate. But, given the compensatory damages awarded, especially the Wallace damages, and that there were no special factors requiring deterrence such as a pattern of abuse or the kind of conduct found in Whiten, as well as the relatively short duration of the misconduct, in my view, an award of no more than $100,000 can be justified.

- Annie Kenet and Garry J. Wise, Toronto

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Blawg of the Day

We're honoured! Thanks to for the mention.

-Garry J. Wise, Toronto

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Tuesday, October 17, 2006

Tuesday's Legal Headlines

Tuesday edition:

-Garry J. Wise, Toronto

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Monday's Legal Headlines

A few legal news items that we'll be keeping our eye on:

-Garry J. Wise, Toronto
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Sunday, October 15, 2006

Habeus Corpus

Keith Olbermann of MSNBC comments on the potentially detrimental impact of recent U.S. legislation on the traditional, constitutional entitlement to habeus corpus in America.

(This legislation, the Military Commission’s Act of 2006, represents Congress' response to the U.S. Supreme Court's decision in Hamdan v. Rumsfeld, on which I commented here.)

For a short primer on habeus in Canada, see the excerpt below, from

Habeas corpus: A writ or order requiring that prisoners be brought before a court to determine if he or she is being held lawfully. [sic]

The right of habeas corpus is intended to prevent imprisonment without charges.

The right of habeas corpus has been suspended several times in Canadian history, most notably when German, Ukrainian and other Slavic Canadians were interned in World War I, and when Japanese Canadians were interned during World War II. It was also suspended in Qu├ębec in 1970 during the October Crisis.

Highly related is the issuance of Canadian Security Certificates under the Immigration and Refugee Protection Act. This legislation provides for the removal, without open hearing, of any non-citizen who is found to pose a security threat to Canada:


Examination on Request by the Minister and the Minister of Public Safety and Emergency Preparedness

Referral of certificate
77. (1) The Minister and the Minister of Public Safety and Emergency Preparedness shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court, which shall make a determination under section 80.

Effect of referral
(2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination. 2001, c. 27, s. 77; 2002, c. 8, s. 194; 2005, c. 10, s. 34.

Judicial consideration
78. The following provisions govern the determination:

(a) the judge shall hear the matter;

(b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;

(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;

(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;

(e) on each request of the Minister or the Minister of Public Safety and Emergency Preparedness made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;

(f) the information or evidence described in paragraph ( e) shall be returned to the Minister and the Minister of Public Safety and Emergency Preparedness and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;

(g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person;

(h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed;

(i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and

(j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence. 2001, c. 27, s. 78; 2005, c. 10, s. 34(E).

Proceedings suspended
79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1).

Proceedings resumed
(2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Courts Act. 2001, c. 27, s. 79; 2002, c. 8, s. 194.

Determination that certificate is reasonable
80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.

Determination that certificate is not reasonable
(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.

Determination not reviewable
(3) The determination of the judge is final and may not be appealed or judicially reviewed.

Effect of determination — removal order
81. If a certificate is determined to be reasonable under subsection 80(1),

(a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;

(b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and

(c) the person named in it may not apply for protection under subsection 112(1).
The constitutionality of Security Certificate procedures was reviewed by the Supreme Court of Canada in June 2006. The Court's decision is now pending.
CTV News had this backgrounder (excerpted below) on Security Certficates in the context of the S.C.C. case:

Three men are being detained in Canada with little information why, or even when they may be released. Some have been locked away for years. All are legally held using national security certificates.

The government argues the certificates are crucial to protecting Canadians from potential terrorists who have come into the country. Critics say they're an affront to the Charter of Rights and Freedoms...

... The judge's decision is made in private, without the presence of the person named in the certificate or any legal counsel. The person named in the certificate only receives a summary of the information that "enables them to be reasonably informed of the circumstances giving rise to the certificate."

... these summaries are brief sketches at best, giving little indication why an individual is being held. He or she is then allowed to present their case in open court and argue why they are not a threat and should not be deported.

When a judge does make a ruling, the person cannot appeal it. If the judge agrees with the certificate, the person is removed from the country. If not, the certificate is rejected and the person is released.
-Garry J. Wise, Toronto
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Saturday, October 14, 2006

The Children's Wish "Wishmaker" Parade

Children's Wish is a truly worthy Canadian charity.

Today, in more than 100 communities across Canada, the Children's Wish "Wishmaker Parade" is raising funds to grant wishes for children diagnosed with high risk, life-threatening illnesses.

Wise, Kirsh and Winberg (that's my band, not a law firm!) joined Toronto Mayor David Miller and various other local personalities and performers for a benefit concert at Sunnybrook Park this morning, preceding the parade.

The Children’s Wish Foundation of Canada is dedicated to working within the community to help every child enjoy the best quality of life possible, including the experience of laughter, shared joy and treasured memories with important people in their lives.

The Toronto Wishmaker Parade had an excellent turnout, in spite of weather challenges (although we were lucky enough to have the sun mostly shining when we took the stage). For those interested, our setlist included a cover of CSNY's Teach Your Children and five original songs: Northland Summer, Casting Colours, Together, Wayward Son and Open Up Your Eyes.

Congratulations to the Toronto organizers of this successful day, and a special word of thanks to Paul Lawrence who asked us to be a part of this excellent event.

-Garry J. Wise, Toronto
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