Quotable: On Sarah Palin, Again

What Canada's bloggers are saying about Vice Presidential candidate Sarah Palin's introductory performance yesterday at the Republican Party's national convention:

Aiden Maconachy reviews the speech: 

The right wing claptrap she dished for the benefit of the Republican base is what America should be trying to deliver itself from, not embrace. The ideology inherent in Palin's line of thinking will make America more, rather than less unilateral in its approach. In some respects she out-Bushes Bush.

Obama is calling for healing and reconciliation. Palin seems determined to reignite the culture wars that pit small town America against urban America. Her rhetorical knifework aimed at Obama was delivered without an angry edge - but when you read the text there is no mistaking that this was a nasty speech.

Kevin Brennen at Peace Order and Good Government adds:

The one thing this made clear, if there was any doubt, is that the Republicans have nothing left but attempts to co-opt Obama's message combined with culture war. The next 60 days are going to get very nasty indeed. In the end, I don't think it will be enough. They've already conceded the need for change. Attacks on Obama do nothing to convince people they can deliver it.

- Garry J. Wise, Toronto

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On Sarah Palin

The irreplaceable Billmon, (now back at Kos after far too long an absence) weighs in on the Republican nomination of Alaska Governor Sarah Palin as John McCain's running mate:

...McCain has picked a 44-year-old ex-mayor, with a grand total of two years of gubernatorial experience, in a state with a population of less than 700,000 (and a sane population that's quite a bit smaller than that) and wants the voters to put her the proverbial heartbeat away from the presidency.

This doesn't exactly jibe with McCain's brand image as the candidate who will keep America "safe" -- not for a 72-year old man who's had repeated bouts with skin cancer.
Whether and when and how the Obama campaign decides to "go at" Palin will be an interesting test of their political instincts and their skill with the propaganda knife. Can they define and demolish her without turning into the bullies, picking on a delicate flower of Caucasian Christian womanhood? Or will they just let Sarah be Sarah, and see what falls out of the Alaskan corruption and craziness tree? Stay tuned.

But, the politics of it aside, by picking a woman as his running mate McCain has performed at least one service: He's made it possible to precisely calibrate just how far behind the curve of history the Republicans really are -- and it's 24 years, the exact length of time since the Democrats put the first woman on a presidential ticket.

John McCain: the Republican answer to Walter Mondale.

I definitely like the ring of that.

For my part, I think the Palin nomination, while truly cynical and almost desperately pandering, should not be underestimated.

It will change the narrative of the coming Presidential election.

By implicitly embracing themes of gender equality and generational renewal, the McCain-Palin ticket is now well-positioned to credibly speak from the right - the very far right, apparently - in the progressive dialogue that began in the Clinton-Obama primary race.

And while the McCain camp has, with this nomination, absolutely sucked any remaining utility from its own argument that Barack Obama lacks the experience to lead, that ill-formed posture probably didn't have winning legs, in any event.

It would have been difficult before the Palin announcement to imagine any John McCain-led Republican ticket as presenting even an arguable alternative for modernity and change. The Palin nomination has at very least accomplished that incredible feat.

As a result, "four more years of the last eight years" will probably no longer cut it as the Democratic campaign mantra. (That's probably a good thing - if the polls are accurate, it certainly hasn't been resonating with the electorate)

But let's face it, while Governor Sarah Palin may be many things...

She sure is no Dick Cheney.

And that's a change even I can embrace.

- Garry J. Wise, Toronto

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Barack Obama's DNC Speech - Video

For those who missed it, here is Barack Obama's acceptance speech last evening in Denver:

- Garry J. Wise, Toronto

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Quoteworthy

Law Society of Upper Canada bencher Robert Aaron, on new U.S. border regulations that allow search and seizure of electronic devices that may contain solicitor-client privileged materials:

A newly announced policy of the United States Department of Homeland Security presents a significant threat to the solicitor-client confidentiality to which Canadians are entitled.

The threat arises when a Canadian lawyer travels to the United States with his or her laptop computer, cellphone, BlackBerry, flash drive, or any other written or recorded information or client files — even if the lawyer is only on holiday. The same threat occurs when a client travels across the border in possession of similar communications to or from his or her lawyer.

...My intuition tells me that the contents of my laptop and BlackBerry are better shielded from prying government eyes when I take it to communist Cuba than when I drive across the border to Buffalo.

- Garry J. Wise, Toronto

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The "Secret" is Out... Lawyers Use the Internet

It's hardly breaking news, but as a top-line overview of the numerous web-based resources lawyers now employ in our daily routines, I think this article from the Vancouver Sun is timely.

See: The Internet has become indispensible to the legal world.

- Garry J. Wise, Toronto

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Privacy Concern Over Police GPS Use

A Washington Post article considers the privacy implications of increasing use of GPS technology by U.S. police in investigative pursuits:

Across the country, police are using GPS devices to snare thieves, drug dealers, sexual predators and killers, often without a warrant or court order. Privacy advocates said tracking suspects electronically constitutes illegal search and seizure, violating Fourth Amendment rights of protection against unreasonable searches and seizures, and is another step toward George Orwell's Big Brother society. Law enforcement officials, when they discuss the issue at all, said GPS is essentially the same as having an officer trail someone, just cheaper and more accurate. Most of the time, as was done in the Foltz case, judges have sided with police.

Wth the courts' blessing, and the ever-declining cost of the technology, many analysts believe that police will increasingly rely on GPS as an effective tool in investigations and that the public will hear little about it. Last year, FBI agents used a GPS device while investigating an embezzlement scheme to steal from District taxpayers, attaching one to a suspect's Jaguar.

...Barry Steinhardt, director of the American Civil Liberties Union's technology and liberty program, considers GPS monitoring, along with license plate readers, toll transponders and video cameras with face-recognition technology, part of the same trend toward "an always-on, surveillance society."

"Things that would have seemed fantastic 15 years ago are now routine," he said. "We have to rethink what is a reasonable expectation of privacy."

So far, the U.S. Supreme Court has not weighed in on unwarranted GPS tracking, but supporters point to a 1983 case that said police do not need a warrant to track a car on a public street with a beeper, which relays the car's location to police.

Lower courts that have addressed the issue have not all agreed. The Washington state Supreme Court has ruled that police must obtain a warrant to use the device in that manner, but courts in New York, Wisconsin and Maryland, and the U.S. Court of Appeals for the 7th Circuit in Chicago, have held that a warrant is not necessary.

- Garry J. Wise, Toronto

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Explosions Rock Toronto: Fires Reported at Keele/Wilson

Explosions loud enough to shake our residence kilometers away were heard in Toronto at 3:45 a.m. Sunday morning.

Radio reports indicate that evacuations in the neighbourhood are ongoing, after a reported series of explosions at a propane depot that were "lighting up the sky like fireworks."

Beyond that, media reports are skimpy.

Police officers blockading the northbound Allen Road confirmed the resulting fireballs. The explosions, numbering in the dozens, continued well in excess of an hour following the initial boom.

There are no reports of injuries at this time (5:30 a.m.)

- Garry J. Wise, Toronto

UPDATE - 6:35 a.m. - 680 News now reports "numerous injuries" to residents near the Murray Road propane depot that has experienced a series of ongoing explosions.

A company known as Sunrise Propane is listed at 54 Murray Road. No confirmation is available regarding the specific location of the fire, however.

A YouTube video claims to contain footage of the explosion:

CBC News has more:

• Massive fire at Toronto propane depot forces thousands to flee
• Residents say propane facility should never have been allowed

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Anthrax Questions Unanswered

Iowa's Republican Senator, Charles Grassley, poses some very penetrating questions in this letter to U.S. Attorney General Michael B. Mukasey and F.B.I. Director Robert S. Mueller regarding the FBI's investigations into the 2001 Anthrax letter attacks:

Dear Attorney General Mukasey and Director Mueller:

Thank you for ensuring that Congressional staff received an advanced briefing yesterday of the information released to the public in the Amerithrax investigation. The three affidavits provided represent an important, but small first step toward providing Congress and the public a full accounting of the evidence gathered by the FBI.

At yesterday's briefing, Justice Department and FBI officials invited follow-up questions after there had been time to read the affidavits. Indeed, there are many important questions to be answered about the FBI's seven-year investigation, the basis for its conclusion that Dr. Bruce Ivins conducted the attacks alone, and the events leading to his suicide. To begin this inquiry, please provide complete and detailed answers to the following questions:

1. What is the date (month and year) that the FBI determined that the anthrax came from a specified flask in Ivins's lab ("RMR-1029")?

2. When (month and year) did the FBI determine that Dr. Hatfill never had access to the anthrax used in the killings?

3. How did the FBI determine that Dr. Hatfill did not have access to the anthrax used in the killings? Was that because the FBI determined that Dr. Hatfill no longer worked at USAMRIID when the powder was made.

4. Was Dr. Hatfill or his counsel informed that Dr. Hatfill had been cleared of any involvement in the anthrax killings before the Department of Justice offered a settlement to him? Was he informed before signing the settlement agreement with him? If not, please explain why not.

5. Was Judge Walton (the judge overseeing the Privacy Act litigation) ever informed that Dr. Hatfill had been eliminated as a suspect in the anthrax killings? If so, when. If not, please explain why not.

6. Was Dr. Ivins ever polygraphed in the course of the investigation? If so, please provide the dates and results of the exam(s). If not, please explain why not.

7. Of the more than 100 people who had access to RMR 1029, how many were provided custody of samples sent outside Ft. Detrick? Of those, how many samples were provided to foreign laboratories?

8. If those with access to samples of RMR 1029 in places other than Ft. Detrick had used the sample to produce additional quantities of anthrax, would that anthrax appear distinguishable from RMR 1029?

9. How can the FBI be sure that none of the samples sent to other labs were used to create additional quantities of anthrax that would appear distinguishable from RMR 1029?

10. Please describe the methodology and results of any oxygen isotope measurements taken to determine the source of water used to grow the spores used in the anthrax attacks.

11. Was there video equipment which would record the activities of Dr. Ivins at Ft. Detrick on the late nights he was there on the dates surrounding the mailings? If so, please describe what examination of the video revealed.

12. When did the FBI first learn of Dr. Ivins' late-night activity in the lab around the time of the attacks? If this is powerful circumstantial evidence of his guilt, then why did this information not lead the FBI to focus attention on him, rather than Dr. Hatfill, much sooner in the investigation?

13. When did the FBI first learn that Dr. Ivins was prescribed medications for various symptoms of mental illness? If this is circumstantial evidence of his guilt, then why did this information not lead the FBI to focus attention on him, rather than Dr. Hatfill, much sooner in the investigation? Of the 100 individuals who had access to RMR 1029, were any others found to suffer from mental illness, be under the care of a mental health professional, or prescribed anti-depressant/anti-psychotic medications? If so, how many?

14. What role did the FBI play in conducting and updating the background examination of Dr. Ivins in order for him to have clearance and work with deadly pathogens at Ft. Detrick?

15. After the FBI identified Dr. Ivins as the sole suspect, why was he not detained? Did the U.S. Attorney's Office object to seeking an arrest or material witness warrant? If not, did anyone at FBI order a slower approach to arresting Ivins?
16. Had an indictment of Dr. Ivins been drafted before his death? If so, what additional information did it contain beyond the affidavits already released to the public? If not, then when, if ever, had a decision been made to seek an indictment from the grand jury?

17. According to family members, FBI agents publicly confronted and accused Dr. Ivins of the attacks, showed pictures of the victims to his daughter, and offered the $2.5 million reward to his son in the months leading up to his suicide. These aggressive, overt surveillance techniques appear similar to those used on Dr. Hatfill with the apparent purpose of intimidation rather than legitimate investigation. Please describe whether and to what degree there is any truth to these claims.

18. What additional documents will be released, if any, and when will they be released?

Please provide your responses in electronic format. Please have your staff contact (202) 224-4515 with any questions related to this request.

Sincerely,

The above letter was posted at TPM Muckraker, which has been following this story quite closely and is delivering excellent coverage.

- Garry J. Wise, Toronto

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DNA 'Infallibility' Questioned

A Los Angeles Times article suggests that the odds of unrelated persons sharing similar DNA profiles may be considerably higher than previously believed:

State crime lab analyst Kathryn Troyer was running tests on Arizona's DNA database when she stumbled across two felons with remarkably similar genetic profiles.

The men matched at nine of the 13 locations on chromosomes, or loci, commonly used to distinguish people.

The FBI estimated the odds of unrelated people sharing those genetic markers to be as remote as 1 in 113 billion. But the mug shots of the two felons suggested that they were not related: One was black, the other white.

In the years after her 2001 discovery, Troyer found dozens of similar matches -- each seeming to defy impossible odds.

- Garry J. Wise, Toronto

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Auction Rights and Obligations Clarified, Expanded

How can a bison auction possibly be relevant to antique collectors?

A 2007 Saskatchewan Court of Appeal decision broadened the liability of auction houses regarding their obligations to purchasers, and summarized the law concerning the three main legal relationships within the auction context.

In Saskatoon Auction Mart v. Tkachuk, Taras Tkachuk bought 31 bison through Saskatoon Auction Mart (SAM). Within 2 months several animals died from disease caused by a virus contracted while they were at the auction premises. Three days lapsed between when the bison arrived at SAM, healthy, and their removal by Mr. Tkachuk, highest bidder. Tkachuk sued SAM. The judge concluded SAM did not take reasonable care housing the bison so as to prevent infection, and awarded Tkachuk $26,225. SAM appealed, but the appeals court upheld the decision.

SAM was exploring the possibility of a new venture, bison auctions. It hired Mr. Wojciechowski, an experienced bison producer, to supervise animal handling. Wojciechowski cautioned SAM’s president, Mr. Blacklock, that mixing sheep and bison could cause a deadly disease in bison. A virus which resides in sheep, while not fatal to them, is lethal to bison. SAM kept sheep in a different part of its premises from where it housed the bison. Blacklock either didn’t heed the advice he received, or thought that physical separation was enough. Nor did he consult a veterinarian to determine the warning’s validity or about available protective measures. Between when the bison were brought to SAM by their owners, and when Tkachuk removed them, they became infected. The plaintiff’s expert testified that the virus is transmitted through the air, and that when bison and sheep are corralled within 1,000 feet of each other, the result may be fatal.

The first relationship within the auction context is between the owner of goods and the highest bidder. The owner agrees to sell, and the purchaser agrees to pay a price. The auctioneer is merely the vendor’s agent. The second is the contract between the owner and the auctioneer, stipulating terms including commission, no buy-backs, etc. The third is the contract between the auctioneer and the purchaser, the auctioneer agreeing to release the goods once paid for. Each relationship has nuances and is marked by a series of rights and obligations of each party.

In this case, the third relationship was puzzling. We know that once the bison had been sold, a contract existed between the auctioneer and the purchaser, called bailment for hire. SAM had an obligation to Tkachuk to ensure that the bison were appropriately looked after until he removed them, in exchange for which SAM earned a commission. But it was never determined if the bison developed the disease after purchase by the plaintiff or before the fall of the hammer. If it was before, there was no bailment relationship between the auctioneer and Tkachuk because Tkachuk didn’t own the animals yet.

The appeals court reasoned it didn’t matter when the former high priests of the plains became ill. Between when an auctioneer receives goods, and when they are picked up by their purchaser, the auctioneer must take reasonable care. SAM argued that the judge set the standard too high, based on a practice neither widely accepted nor published (the evidence of the veterinarian and Mr. Wojciechowski). However the court said the auctioneer had enough knowledge to do more than it did (merely separate the species). Generally speaking, an auctioneer of a particular commodity is presumed to have an exacting knowledge of it, and know about its care while in his possession, unless he expressly states otherwise (i.e., “as is, where is, no warranty as to use or condition”).

According to the Court of Appeal, SAM had a duty to heed Wojciechowski’s warning, investigate further, and seek professional advice. This was an implied term of the contract between SAM and Tkachuk, the reasonable care to be taken. In a contract, written or oral, it’s not always possible to confine the terms to those expressly stipulated. There are circumstances where a court may conclude that everything agreed by the parties which appears to constitute the contract, is not only contained in their documents or statements. Sometimes additional terms must be implied. While some courts favour a restrictive approach to implying terms, it’s often necessary to give business efficacy to agreements.

Tkachuk wouldn’t have succeeded suing the vendors of the bison because they did nothing wrong. Nor would he have prevailed against the sheep owners, because the virus is common in sheep, and their owners didn’t have knowledge of SAM’s practices or procedures. His only recourse was against the auctioneer, even though there was no express term about what steps SAM would take to ensure Tkachuk received healthy animals.

This case is rare because not often are goods damaged as a result of an auctioneer’s negligence. Usually bidders learn of defects through visual inspection or the auctioneer’s disclosure when an item is put on the block. The auctioneer’s statements at the beginning of this auction, and terms contained in his flyers about “no warrantees,” could not be binding on a purchaser such as Tkachuk. Why: The most careful bidder’s eye could never have detected this problem. Sometimes you have to rely on your auctioneer to have been doing the right thing. Nothing he says or does can reduce or over-ride his liability if a judge determines that the auction rules contain a contrary implied term.

Parallels exist within the antiques context: What is the reasonable care of a particular class of collectible within an auctioneer’s temporary care, which he must take? Would any buyer bid on an item knowing that the auctioneer had not taken proper care of it? The standard, and therefore the implied term, will vary depending on the nature of the antique, and the particular auctioneer and his reputation in the community.

A decoy auction advertises a rare J.R. Wells mallard in exceptional condition, pictured in the catalogue. It’s the annual Schmidt-Guyette sale at St. Charles, Illinois, attended by continent-wide collectors. The consignor delivers the decoy and all is well, until a new employee places the bird, pending auction, beside a furnace. A crack develops, not noticed by the auctioneer’s staff. Auction attendees see the crack and bid accordingly. However a phone bid takes the decoy. Gary Guyette and Frank Schmidt are expert North American decoy auctioneers and appraisers. Are they liable for failing to ensure the decoy was not exposed to extreme heat? Would the crack have developed regardless? Any different if it was a contemporary decoy which had not already been cured through decades of temperature and humidity fluctuations? What if the auctioneer was John Simpson who conducts sporting collectible auctions and usually sells a few decoys? What about an auctioneer specializing in urban and rural estate auctions? Knowing John, Gary and Frank, no doubt each practices proper employee training procedures, and in the unlikely event that something untoward occurred, they would do the right thing. In fact a somewhat similar incident happened to me years ago at the Illinois auction, and management rectified the problem on the spot. This hypothetical with its permutations illustrates the difficulty in stating hard-fast rules. But we now know some factors used to determine the standard of care to which an auctioneer may be held accountable.

An auctioneer’s duty of care is one of a number of obligations in the auctioneer – purchaser relationship. To whet the appetite for future auction articles, let’s conclude with another example: Our estates auctioneer sells a cranberry epergne. There’s an article on the internet about contemporary versions of Victorian glass. By chance the winning bidder reads it and has a glass expert confirm his suspicions: It’s a reproduction. Should “buyer beware” govern? What if the auction was advertised as Smith’s Monthly Antique Auction? Is Smith protected by his boilerplate limitation of liability in his advertisements?

AUTHOR’S NOTE: Taras Tkachuk, our winner in this case, is the same Taras Tkachuk who lost against Ritchie Bros.

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

Alvin Starkman received his Masters in Social Anthropology in 1978. After teaching for a few years he attended Osgoode Hall Law School, thereafter embarking upon a successful career as a litigator until 2004. Alvin, a good-standing member of the Law Society of Upper Canada, now resides with his wife Arlene in Oaxaca, Mexico, where he writes, leads small group tours to the villages, markets, ruins and other sights, is a consultant to documentary film production companies, and operates Casa Machaya Oaxaca Bed & Breakfast.

.......

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Sex for 25 Gallons of Gas

Believe it or not, it happened in Kentucky.

As reported by National Post (quoting the Smoking Gun), a 34 year old woman is facing prostitution charges for allegedly trading sex for $100 gas card.

Read the story here.

- Shashi K. Raina, Toronto

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Truscott Compensation: $250,000 for Each Year in Jail $100,000 for Each Year on Parole

Steven Truscott, who spent 10 years in jail after being wrongfully convicted of rape and murder of schoolmate Lynne Harper was awarded $6.5-million compensation from the Ontario government.

After announcing the award yesterday, Ontario Attorney General Chris Bentley said "It is my hope that Mr. Truscott and his family will now be able to spend all of their time on the rest of life's journey."

Mr. Truscott called the compensation "bittersweet".

Mr. Truscott's compensation was recommended in a report by retired Ontario Appeal Court Justice Sydney Robins, who was asked by the province to review the issue of compensation after the Ontario Court of Appeal acquitted Mr. Truscott of the 1959 crime last August.

Read the full story here.

- Shashi K. Raina, Toronto

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Neocon Nostalgia

Yearning for the 'good old days' at The Corner:

Where’s Dad? Not the “fathers” of these unfortunate pre-borns, but the fathers of these pregnant girls. Where, in other words, is the shotgun?

Back in the day when birth control and abortion weren’t readily available to high-school kids, fathers were pretty good deterrents to pregnancy. Boys knew they’d have kneecap problems if they got daddy’s little girl pregnant. If they were lucky, they’d be married by the morning after.

Girls, meanwhile, were less likely to risk pregnancy because alternatives to motherhood were few, adoption being the most likely.

It wasn’t a foolproof system, clearly, but the specter of lifelong consequences, combined with societal and parental disapproval, helped keep the illegitimate birthrate down.

Yup. Them sure was better times...

The scary question after District of Columbia v. Heller, however, is how many U.S. Supreme Court Justices might agree with that sentiment?

- Garry J. Wise, Toronto

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'Free at Last:' Canadian Human Rights Commission Dismisses Complaints Against Mark Steyn, Macleans Magazine

This Globe and Mail report will come as no surprise:

The Canadian Human Rights Commission has dismissed a complaint against Maclean's magazine over a controversial article on the future of Islam, magazine officials said yesterday.

Meanwhile, a decision from the B.C. Human Rights Tribunal over the same issue isn't expected for several months.

The Canadian Islamic Congress launched the dual complaints over an article by Maclean's journalist Mark Steyn. The article, The Future Belongs to Islam, came under fire by Muslim critics who claimed it spreads Islamophobia.

Earlier this month, closing arguments were made before B.C.'s Human Rights Tribunal over the article, which appeared in Maclean's in October, 2006.

In dismissing the complaint, the Commission stated:

Overall, the views expressed in the Steyn article, when considered as a whole and in context, are not of an extreme nature as defined by the Supreme Court in the Taylor decision. Considering the purpose and scope of section 13 (1), and taking into account that an interpretation of s 13(1) must be consistent with the minimal impairment of free speech, there is no reasonable basis in the evidence to warrant the appointment of a Tribunal.

For these reasons, the complaint is dismissed.

The full text of the CHRC decision is now online: Canadian Islamic Congress v. Rogers Media Inc.

For more discussion of the Supreme Court of Canada's decision in the John Ross Taylor case referenced in the CHRC ruling, see our December 17, 2007 post, Mark Steyn, Macleans and Canadian Human Rights.

We've written much previously on this complaint, and have little to add to our original commentary, also of December 17, 2007:

For the record, then, let me state the obvious:

• These are merely complaints, and have not yet been adjudicated;
• Allegations such as these will not necessarily be substantiated through the complaint processes or at a hearing;
• Our press also has broad freedoms and protection in Canada - these will weigh heavily in the balance of any tribunal determination of these complaints.
• If the complaints are weak or frivolous, they are not likely to have any success at all. The complainants nonetheless have the right to be heard. That is how our judicial processes work and that too, is a freedom worth protecting.

For additional commentary on the fallout of this dismissal, see:

• Martyrdom denied, part deux - Dawg's Blog
• Canadian Human Rights Commission denies Steyn martyrdom -The Galloping Beaver
• Macleans Magazine Loses Its CHRC Complaint - Big City Lib
• Maclean's responds to recent decision from the Canadian Human Rights Commission - CNW Press Release
• Islamic Congress responds to Canadian Human Rights Commission's decision on human rights complaint filed against Maclean's - CNW Press Release

For what's it's worth, Mr Steyn assures his readers that victory notwithstanding, the campaign to restore free speech to Canada will continue, unabated.

- Garry J. Wise, Toronto

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Honda and Keays: Supreme Court of Canada Rules for Honda, Punitive Damages Awards Set Aside

The Supreme Court of Canada has today released its long-awaited decision in Honda and Keays.

By a 7-2 majority, the court ruled in favour of the employer, Honda. The trial court's award of punitive damages against Honda in the sum of $500,000, subsequently reduced to $100,000.00 by the Ontario Court of Appeal, has been set aside.

We'll have more on this decision later. In the meanwhile, this excerpt from the Court's headnote summary sets out the Court's conclusions quite succinctly:

Aggravated damages should not have been awarded in this case. The employer’s conduct in dismissing K was in no way an egregious display of bad faith justifying an award of damages for conduct in dismissal. On this issue, the trial judge made overriding and palpable errors of fact. The employer’s March 28 letter to K did not misrepresent the positions of its doctors and it should not have been faulted for relying on the advice of its medical experts. There is no evidence that B took a “hard‑ball” attitude towards workplace absences or that K was being set up when asked to meet B. The employer’s request for a meeting between K and B was normal in the circumstances. The employer’s decision to stop accepting doctor’s notes was not reprisal for K’s decision to retain legal counsel. Rather, the employer was simply seeking to confirm K’s disability. Lastly, there is no evidence that K’s disability subsequent to termination was caused by the manner of termination. [34‑35] [38] [40] [43] [46‑48]

Similarly, punitive damages should not have been awarded. Punitive damages are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own. The facts of this case demonstrate no such conduct. Courts should only resort to punitive damages in exceptional cases and the employer’s conduct here was not sufficiently egregious or outrageous to warrant such damages. Even if the facts had justified an award of punitive damages, both the trial judge and the Court of Appeal should have been alert to the fact that the compensatory damages already awarded carried, under the old test, an element of deterrence and they should have questioned whether punitive damages were necessary. This failure resulted in considerable and unnecessary duplication in the award of damages. [61‑62] [70]

Both the trial judge and the Court of Appeal also erred in concluding that the employer’s “discriminatory conduct” amounted to an independent actionable wrong for the purposes of allocating punitive damages. The Ontario Human Rights Code provides a comprehensive scheme for the treatment of claims of discrimination. A breach of the Code cannot constitute an actionable wrong; therefore the legal requirement for the common law remedy of punitive damages is not met. Since there is no evidence of discrimination to support a claim of discrimination under the Code and no breach of human rights legislation serves as an actionable wrong, there is no need to deal with K’s request for recognition of a distinct tort of discrimination. [55] [57] [60]

The full text of the Court's decision: Honda Canada Inc. v. Keays, 2008 SCC 39 (CanLII)

For additional background, our previous articles on this important case are compiled here.

More reading:

• Top court sides with Honda in landmark wrongful-dismissal case - CBC
• Supreme Court erases punitive damages in dismissal case - Globe and Mail
• SCOC quashes $100000 punitive award - Canada.com

- Garry J. Wise, Toronto

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

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Montreal Gazette: SCC Bell Ruling a "Stinging Rebuke" to Quebec Court of Appeal

From a June 26 Gazette op-ed:

The rapidity with which the Supreme Court heard the Bell buyout case, and the unprecedented speed with which it overturned the Quebec Court of Appeal's ruling that would have derailed the deal, sends an unmistakeable message to the appeal bench to get its act together on commercial law.

The Supremes' unanimous 7-0 decision, with costs thrown in as well, is a stinging rebuke to the Quebec court... It's not the first time the Supremes have overturned the top Quebec court, but the magnitude of the Bell case, and the consequences of it, dramatize the message from on high. In fact, the Supreme Court has previously reversed seven out of nine commercial rulings from the Quebec court, including five out of five unanimous judgments, in the last five years.

...A unanimous judgment of the Quebec court was unanimously reversed within 72 hours of a hearing. You don't see that every day. The message to the Quebec court was a resounding rejection of its logic and interpretation of business law, with a slap upside the head - don't you guys understand the consequences of this?

- Garry J. Wise, Toronto

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US Supreme Court Strikes Down D.C. Gun Control Law

WSJ Law Blog:

In District of Columbia v. Heller, the hotly-anticipated case over the D.C. gun ban, a 5-4 majority affirmed the D.C. Circuit’s ruling that the District of Columbia’s ban on handguns violated the Second Amendment. The majority opinion was written by Justice Scalia. Justices Breyer and Stevens wrote dissents. (Here’s the opinion.)

E.J. Dionne comments in A Court of Radicals:

In knocking down the District of Columbia’s 32-year ban on handgun possession, the conservatives on the U.S. Supreme Court have shown again their willingness to abandon precedent in order to do whatever is necessary to further the agenda of the contemporary political right.

The court’s five most conservative members have demonstrated that for all of Justice Antonin Scalia’s talk about “originalism” as a coherent constitutional doctrine, the judicial right regularly succumbs to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.

Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case.

...In his intemperate dissent in the court’s recent Guantanamo decision, Scalia said the defense of constitutional rights embodied in that ruling meant it “will almost certainly cause more Americans to be killed.” That consideration apparently does not apply to a law whose precise purpose was to reduce the number of murders in the District of Columbia.

Also see: Justices Rule for Individual Gun Rights - N.Y. Times

- Garry J. Wise, Toronto

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He's Just a Politician, After All

MSNBC Jonathan Alter, on Barack Obama's policy reversal and new-found support for the telecom immunity provisions of a FISA "compromise" bill that will shortly be debated in the US Senate:

It was only a matter of time before the left was disappointed in Barack Obama, at least in a limited way. No politician is ever going to do everything that somebody likes.

And I think some folks in the netroots in particular on this FISA bill who are, you know, pulling their hair out over this, they have to realize, he's always been a politician, he'll always be a politician, and politics is the art of the possible. And he's a legislator. He knows that you can't always get everything that you want in a bill, even if he personally believes that the immunity for Telcoms is a bad idea. The larger idea of the bill was important.

- Garry J. Wise, Toronto

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SCC: Honda and Keays Update

The Supreme Court of Canada will be handing down its ruling in Honda and Keays tomorrow, according to an online report.

- Garry J. Wise, Toronto

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Child Support Spies Down Under

An interesting update from The Australian describes aggressive enforcement measures to be adopted in Australia to secure payment of child support arrears from defaulting payors:

Private investigators will be used by the Child Support Agency (CSA) to spy on parents who are not meeting their child support payments.

The Federal Government says the new measures would help the CSA collect outstanding debts of $1 billion from the current financial year.

...The CSA will now be able to conduct optical surveillance, through private investigators in serious cases where parents have provided false or misleading information in relation to their child.

"What optical surveillance will do is provide visually compelling evidence that some people are not doing the right thing," Senator Ludwig said.

"We can use that visual evidence for court action. We can also use it to encourage parents to do the right thing and pay their debt in full.

"It can stretch from video surveillance, it can stretch to just observation, as well. A whole range of actions can be used."

(h/t - Sandra)

- Garry J. Wise, Toronto

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

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