Saturday, May 30, 2009

Clinton and Bush: The "Don't Ask, Don't Tell" Summit in Toronto

Wise Law Blog's Garry J. Wise attended at the Bush - Clinton Summit at the Toronto Convention Centre on May 29, 2009. His report follows:

It was an event where cordiality would certainly trump controversy.

This, perhaps, was not surprising, given the conservative tone established by a banking executive's introduction of Bill Clinton. He lauded the former President's accomplishments in office, citing job creation stimulated by cuts in welfare payments to America's poor and Mr. Clinton's ability to move the Democratic party "back to the centre."

(Clearly, there would be no home-ice advantage for progressives at this arena, despite Toronto's typically moderate, liberal leanings)

For his own part, the dialogue's mostly-deferential moderator, Frank McKenna, a former Liberal Premier of New Brunswick, Canada's 21st Ambassador to the U.S. and currently Toronto-Dominion Bank Deputy Chair, did little to steer the discussion toward any seriously newsworthy comment by either former President on any questions lingering about his administration's legacy.

It was not to be an afternoon of the toughest questions - or newly-illuminating answers.

If there were certain elephants in the room - questions on impeachment, perjury and toxic partisanship, on the Bush administration's use of torture or former Vice President Cheney's recent, repeated accusation that current President Barack Obama is making America less safe - nobody was asking.

And neither former President was telling.

Thus, those hoping for any specific discussion on "enhanced interrogation methods" or a critical look at America's direction in the wake of 9-11 were destined to go home disappointed.

For much of the well-heeled crowd inside, who paid between $200 and $2500 for the privilege of attending the spectacle, self-styled as "history in the making," that seemed perfectly fine.

Outdoors, however, a throng of noisy but almost farcically well-behaved protesters (this is Toronto, after all) demanded that Toronto's police force immediately arrest Mr. Bush for torture and other alleged war crimes.

Their call was punctuated by an area in their cordoned-off protest zone where willing protesters politely lined up, waiting a turn to toss their footwear at an effigy of Mr. Bush that conveniently sat in as an undefended target for their pointed, but on this day, marginalized outrage.

Let's be clear - true controversy was avoided at all costs.

As a window, however, into the lives and minds of the world's two most powerful men of the last sixteen years, the event certainly delivered with ninety minutes of interesting and often-amusing political theater.

A revealing subtext, nonetheless, may well be in the degree to which the easy retreat by both to safe and common ground underlines the closed and narrow circle of policy and opinion occupied by America's two political parties - and the comfort with which its past leaders protect themselves, and each other from true accountability and scrutiny in the legacy years that follow their administrations' sunsets.

Thus, for those of us in the audience, it was a unique peak into the rules of the road in America's most elite group of all - its Past-President's Club.

Bill Clinton

"America has never had a better ally than Canada," Mr. Clinton stated, warming the audience at the opening of wide-ranging remarks that touched upon Canada's continuing military engagement in Afghanistan, the increasing, documented perils of global warming, and his Clinton Global Initiative, a project aimed at bringing together government, corporate and other leadership interests to address the world's pressing concerns.

Among his key points:
Anticipating the question and answer segment that was to follow the introductory speeches by each former President, Mr. Clinton noted - perhaps apologetically - the constraints imposed on his ability to be fully candid by his wife's appointment as U.S. Secretary of State.

"I have to worry what they will ask Hillary and President Obama if I mess up an answer."

He made it clear, however, that he was not in Toronto to engage in any dust-up with Mr. Bush, indicating that he would do his best to "thwart" any attempt by Mr. McKenna to encourage the event's two marquee guests to "devour each other."

"We'll have an argument, you'll think it's cute..," Mr. Clinton noted, perhaps derisively at the prospect of any conflict in the conversation ahead, making it rather plain that Hillary's role aside, he had no personal inclination to engage in any direct crossfire with his successor.

Instead, he addressed the existential challenge inherent in the life of any ex-U.S. President, noting the U.S. Constitution mandates no role for the nation's former chief executives.

"There is no job description for a former President," said Mr. Clinton. "You have to figure out what to do for the rest of your life." Noting the necessary adjustment after leaving office, he said, "It takes a while to figure out that you're not President any more."

But, he added, a former President quickly learns things have changed. "They don't play Hail to the Chief anymore when you walk into a room."

For Mr. Clinton, the solution lies in continued public service and in living in the present and the future, rather than the past. "I don't tell too many war stories."

Instead, his post-Presidential efforts aim to enhance the critical role of non-governmental entities in effecting necessary change.

People must "do something," he stated, whether that be about global warming, swine flu, or any current challenge in what he sees as our now, highly-interconnected world.

"Citizens can do their part in the 21st century," he urged.

He noted the internet's power as a fundraising tool, enabling individual participation in micro-banking via and disaster relief efforts, such as the Hurricane Katrina experience in which millions of donors combined to aid with average online donations of $56.00.

"How you contribute is the key," said Mr. Clinton.

On the legacy of a presidency he concludes, "The real issue is if the world is better when you leave than when you start."

For Mr. Clinton, "that depends on the how."

George W. Bush

Not surprisingly, George Bush is rather enjoying his immediate post-Presidency.

In a disarmingly jovial, even at times impish talk that did little to dispel the widely-held view that Mr. Bush may indeed be an enjoyable sort of fellow with whom to shoot the breeze, he began by drawling, "I like being in Texas again."

In fact, after commending former first lady Laura Bush on her acquisition of their new Dallas home, he noted jokingly that his initial reaction upon arrival in Texas, after departing the White House, was "Free at last!"

"I don't miss the spotlight," he said, noting he was enjoying the transition from moving at "a hundred miles an hour to zero."

His current activities include walking his dog Barney, and he noted the irony of a former President's engagement in the "stoop and scoop" duties now incumbent upon him in his new neighbourhood.

Beyond that, Laura Bush has mandated his new "domestic agenda," Mr. Bush deadpanned, including mowing the lawn and similar household chores.

Regarding his future plans, Mr. Bush advised, "I'm a Type-A personality - I need something to do." For the former President, that will in the immediate future include writing a book on his Presidency.

"There is no short-term, objective view of history," he stated. "I want people to understand why I made the decisions I made."

Mr. Bush also took a typically self-effacing, humorous jab at his many critics, noting that by becoming an author, he would be sending a message to those with doubts about his inclination - and perhaps, ability - to even read a book.

"I'm gonna prove 'em wrong," he joked.

Mr. Bush will also focus on building a policy centre and Presidential Library at Southwestern Methodist University in Dallas, where he intends to promote his continuing Freedom Agenda.

"Freedom is the alternative to the ideology of the haters. Freedom is tranformative. Freedom brings opportunity. Freedom brings peace," he said.

"I will keep talking about it until my dying day."

On Canada-US relations, Mr. Bush echoed Mr. Clinton's sentiments.

"America is lucky to have such a good friend on our northern border. Canada is our ally and trading partner." Underlining his continuing, staunch support for free trade, Mr. Bush reiterated his opposition to isolationism and "buy American" policies. "There should be no walls between Canada and the US."

Mr. Bush remains an optimist, unrepentant about the war in Iraq. "The world is a safer place without Saddam Hussein," he argued, repeating a mantra that defined much of his Administration.

He seemed to relish the opportunity for a new role as an extravagently-paid keynote speaker.

"I believe in free speech," he punned with a grin, hinting at the considerable sums ponied up by the audience of 6,000.

"Thank you for coming."

Clinton, Bush and McKenna

The program's final segment featured its much-anticipated dialogue between the two former Presidents and Mr. McKenna.

The thirty-minute, three-way conversation touched upon:
  • The wars in Afghanistan and Iraq;
  • Barack Obama's moderating policy toward Cuba;
  • Gay marriage, the Defence of Marriage Act and the US military's "Don't Ask Don"t Tell" policy toward gay servicemen and women;
  • Mr. Clinton's failure to act in a timely manner to prevent the 1994 Rwandan genocide;
  • New regulations requiring the presentation of passports at border points in order to enter the U.S. from Canada.
In perhaps its most jagged moment, Mr. Clinton expressed his remorse at failing to move quickly enough to stop the Rwandan genocide.

Reiterating his belief that had America acted expeditiously, hundreds of thousands of lives might have been saved, Clinton acknoweldged his administration's lapse.

"I will live with it for the rest of my life." he said, thanking Rwandans for their forgiveness, and stating his determination to continue his work in Rwanda to "make it up to them."

On signing the Defence of Marriage Act, which limits federal recognition of same-sex marriages, Clinton defended his 1994 decision as a compromise to stave off others' efforts to pursue a constitutional amendment defining marriage as a union between a man and a woman.

Mr. Bush reiterated his belief that marriage is, in fact, limited to a sacred union between a man and a woman and was emphatic in his opposition to recognition of gay marriage. Mr. Clinton indicated his position continues to "evolve" on this issue.

On President Obama's relaxation on travel and other restrictions involving Cuba, Mr. Clinton deferred to the current Secretary of State, and indicated support for a moderated American policy toward Cuba.

Mr. Bush disagreed. "Diplomacy only works if there is leverage," he contended.

In a more personal moment, Mr. Bush commended Mr. Clinton for never openly criticizing his successor. Mr. Bush was less flattering about certain other, unnamed predecessors, however, who had been more vocal in opposition to his administration's direction.

"It was disrespectful. I didn't appreciate it," he said.

(It was unclear whether Mr. Bush was referring in this context to former President Jimmy Carter or his father, former President George H.W. Bush)

This dialogue presented an opportune moment for Mr. McKenna to enquire as to Mr. Bush's thoughts on Mr. Cheney's recent criticisms of the current Obama administration.

The question, of course, never came.

Mr. Clinton returned the favour of praise, commending Mr. Bush on his administration's financial support for AIDS relief in Africa. 

Noting that "To whom much is given, much is required," Mr. Bush framed AIDS relief as both a humanitarian necessity and a national security imperative that could reduce dangerous hopelessness in Africa and promote understanding of America as a caring nation.

On the election of President Obama, Mr. Clinton remarked that it serves as proof that "America is no longer a black/white nation."

An interesting moment came at the dialogue's conclusion, when Mr. McKenna delivered an impassioned plea for America to reconsider its decision to require that passports be presented by Canadian  visitors at U.S. border crossings. "We thought we were different," Mr. McKenna complained.

"That was a good speech, Frank," Mr. Bush responded. "You should think about getting back into the game."

Both Mr. Clinton and Mr. Bush appeared mystified regarding the border policy, admitting ignorance as to the passport-reqirement regulations, passed in December 2007, during Mr. Bush's tenure.

Mr. Bush queried, "What happened to the EZ Pass Program? I thought we were getting somewhere with that."

Mr. Clinton offered action on the issue. "I'm going back home to see what I can come up with."

Even in the Past-Presidents' Club, then, it apparently helps to have close contacts in Washington.
Many thanks to Omar Ha-Redeye, of Slaw and Law is Cool, who procured our tickets for the event, and Jennifer Smith, of Runesmith's Canadian Content, who also joined us, along with a colleague of Mr. Ha'Redeye's (who, perhaps surprisingly, has no blog to which we may link)

- Garry J. Wise, Toronto

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The Bush Clinton Toronto Debate

Our full report on this event is now online here.

Friday, May 29, 2009

Clinton and Bush Toronto "Debate Today

.. and Wise Law Blog will be there.  Expect our full report on the event later tonight.

- Garry J. Wise, Toronto

UPDATE:  May 30, 2009

Our report is now online here.


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Sotomayor - Running A "Hot Bench"

On Justice Sotomayor's courtroom demeanour:
“They call it a hot bench when a judge asks a lawyer a lot of questions — well, she isn’t afraid of running a hot bench,” said H. Raymond Fasano, Republican immigration lawyer who has appeared before her 24 times, mostly in asylum cases, and is a fan. “When a judge asks a lot of questions, that means she’s read the record, she knows the issues and she has concerns that she wants resolved. And that’s the judge’s job.”

- Garry J. Wise, Toronto

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But It's Not Google

Microsoft intoduces Bing, its new search engine, and New York Times writer Miguel Helft observes:
Meanwhile, some tech people were already noting that Bing is also an unfortunate acronym: “But It’s Not Google.”

- Garry J. Wise, Toronto

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Thursday, May 28, 2009

Great Headline of the Day

Rahm "Hava Nagila" Emanuel Turns Springsteen Jewish.

- Garry J. Wise, Toronto

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Judging Sotomayor (in One Sentence or Less)

Scholars, lawyers and even one of our favourite U.S. law bloggers weigh in on Justice Sotomayor's judicial record in a New Yok Times article today.

See Sotomayor’s Appellate Opinions Are Unpredictable, Lawyers and Scholars Say.

The article falls quite a bit short.

Reducing complex appellate judicial opinions into single sentence decision-bites for the purpose of pigeonholing "whose side a judge is on" strikes me as neither an illuminating nor academically honest pursuit.

It may simply be an American rite-of-passage around Supreme Court nominations, but as Walter Olsen correctly implies in the Times article, such analysis is unlikely to lead to much more than uninformed caricature attacks. 

This brand of commentary is, of course, not without its own irony, given the ready propensity of Justice Sotomayor's critics to cast aspersions on the nominee's own intellectual depth.

Esquire's Worst Lawyer Ads Ever

Seeing is believing. 

More at Esquire's Five Lawyer Ads That Make Any Supreme Court Candidate Look Brilliant:

- Garry J. Wise, Toronto

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Wednesday, May 27, 2009

The Conservative Stacking of U.S. Federal Courts

As the silly season commences with full-tilt conservative attacks upon President Obama's nomination of Sonia Sotomayor to the U.S. Supreme Court, an L.A. Times blog article addresses the cumulative impact of the Bush adminstration's eight years of federal judicial appointments:

Legal scholars have observed that proponents of gay marriage have avoided taking the issue to federal court so far because of the dominance of conservative judges and justices on the federal bench after the eight-year tenure of President George W. Bush.

The U.S. Supreme Court has what usually results in a 5-4 majority against extending rights to gays by recognizing sexual orientation as a vulnerable class of citizens in need of protection.

And all but one of the 13 federal appeals circuits has a reliable conservative majority. Even the exception, the San Francisco-based U.S. 9th Circuit Court of Appeals, experienced a curtailing of its liberal orientation with Bush’s seven appointments.

- Garry J. Wise, Toronto

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Tuesday, May 26, 2009

Sonia Sotomayor to be Obama Supreme Court Nominee

According to CNN and New York Times, President Barack Obama will nominate 2nd Circuit Appellate Judge Sonia Sotomayor to the U.S. Supreme Court, at a 10:15 a.m. press conference today.

- Garry J. Wise, Toronto

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Back from Space

His Hubble Space Telescope repairs now safely behind him, Space Shuttle astronaut Mike Massimino (a.k.a. Astro_Mike) has returned to our planet, and continues to playfully tweet on his experiences:
Getting re-adjusted to gravity, let go of a small bag of groceries and must have expected it to float, luckily no damage.

- Garry J. Wise, Toronto

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N.Y.Times: Not Enough Lawyers... handle an expected General Motors bankruptcy:

How many lawyers will end up working on G.M.'s expected bankruptcy case still is not clear, but in legal circles, the joke is that there may not be enough experienced bankruptcy lawyers available to handle the filing.

In part, that is because so many top lawyers are already running up lots of billable hours working on the Chrysler bankruptcy case, while others have been hired by the government, which is financing the way through bankruptcy for Chrysler and, presumably, G.M.

It is not just lawyers who will be busy handling a G.M. bankruptcy filing, which would be perhaps the biggest and most-watched in legal history. 

- Garry J. Wise, Toronto

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Blackberry Etiquette For Lawyers

In her recent article, Blackberry Behaviour: Is it Ruining Your Reputation, Allison Sheilds of Legal Ease offers a list of eleven behavioural tips for Blackberry users everywhere:

1. If you are attending an event, meal, meeting or presentation,turn off your electronic devices. If you MUST keep them on, turn them to silent or vibrate, do not place them on the table so that the vibration disturbs those around you;

2. If you are awaiting an important call or email,consider not attending the event so that you can attend to your important business;

3. If it is imperative that you attend the event, be sure that you keep your focus or attention on the event. Advise your companions at the outset that you are waiting for an urgent call, and sit near the door. Leave the room or the table discreetly if you absolutely MUST check your email or voice mail or return a call or email;

4. Remember that those around you are forming an impression of you AT ALL TIMES; if you are with a client and are checking your BlackBerry, reading emails, surfing the web, the client is going to think that you don't care about them and that they are not important to you;

5. Be aware that if you are replying to important emails while at dinner, a networking event or another meeting,you are not presenting your best self either at the event or in the email. Not only are you unable to devote your complete attention to the event and the people you are with, but you are also unable to devote your full attention to the email message. You may be making a poor impression on two groups of people at the same time.

6. Even if your device is under the table or you think you are being discreet others in the room are well aware of what you are doing. Regardless of what you think, you are NOT getting away with it!

7.The smaller the meeting, the more noticeable your behavior. But even in large meetings, be mindful of those around you, since they will certainly be aware of your behavior, so if your boss or an important client or colleague is sitting near you, refrain from checking your BlackBerry. And if the presenter, meeting facilitator or your boss is standing, seated on a dais or is behind you, they will be aware of your behavior even in a large room.

8.Reconsider your definition of what is an 'urgent' matter and what can wait. Think about your priorities, not just in the short term (answering this email immediately as opposed to 10 minutes from now), but also in the long term (if the client thinks I'm rude, I may lose the account).

9. Bluetooth is a great technology, but it isn't a fashion statement.Remove your headset when in the presence of others.

10.Just because you engage in an activity by yourself doesn't mean that you are alone. Be considerate of others in public places. Even if you are dining alone, other restaurant patrons, train riders, and people who work out at your gym don't want to be bothered with or interrupted by your telephone conversations. Not only do you run the risk of exposing confidential client information by making business calls in public, but the person riding next to you on the train or in line behind you at the supermarket could be your next great client - if they don't think you're rude, arrogant, annoying or insensitive.

11.To my fellow Twitterers: "live-tweeting" from an event may be great for your Twitter followers, but before you do it, make sure you're not hurting your reputation with others in the room. This behavior may be acceptable in a large conference or meeting which includes technologically savvy attendees, but it may be considered rude in other settings. Consider the impact of your tweets on those you're with, as well as those who follow you. (Will your client appreciate that you're tweeting from court rather than talking to him while you wait for the judge?)

OK, so maybe I am occasionally guilty of a few of the offences listed above.  

I'll try to do better in the future, Allison, really.

But first, give me a second - I have to check my email...

Sunday, May 24, 2009

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.

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


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: 


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.


(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.


(3) The definitions in this subsection apply in this section.
"crime against humanity" 
«crime contre l’humanitĂ© »

"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.

«gĂ©nocide »

"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...


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.

Saturday, May 23, 2009

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 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.

Tuesday, May 19, 2009

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."

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- Garry J. Wise, Toronto

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