"My fellow prisoners...?"
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Wednesday, October 08, 2008
Tuesday, October 07, 2008
Attorney General: Ontario to Enact Apology Act
From CTV:
TORONTO -- Legislation that would allow people to offer apologies without fear of having that used against them in court, making it easier to say sorry when a wrong has been committed, will be introduced in Ontario, the province said Tuesday.
"It's an issue that speaks to our wish, when something goes wrong, when we might be responsible for causing harm, our wish to say, 'I'm sorry, didn't mean it, and I'll try and make amends,' " said Attorney General Chris Bentley.
The Apology Act, if passed, will mean those apologies can't later be used against people, Bentley said.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
"Pallin' Around" With Alaskan Successionists
Following up on my earlier post today, Swift-Boat or be Swift-Boated, it looks like the McCain-Palin team is about to get the discussion it wanted:
Update:
... and this, too:
Palin held fundraiser at home of troubled financial services exec
But to be fair to Palin, her fundraiser host was only at the helm of a company that was fined $75 million by the SEC for questionable trading practices.
It's been a veritable cacaphony of Democratic fight-back today.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Hockey Anthem Finalists Online
The submissions of CBC's five Hockey Anthem Challenge finalists are now online.
Check them out. Numbers 1 and 4 get my nod.
For those of us in Toronto Maple Leaf - land, the music had better be good, because what we're seeing on the ice probably won't be getting us on our feet very much....
It is starting to look like another year of cheering for ABM.*
*Anyone but Montreal
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
Swift-Boat or Be Swift-Boated: U.S. Dems Fight Back
The political nasty season has arrived in America.
In a climate in which Barack Obama has been taunted as "pallin' around with terrorists" by the Republican Party's Vice-Presidential nominee, a well-organized Democratic counter-assault appears to be materializing.
And in a stark contrast to the ill-fated John Kerry campaign of 2004, the Democrats have immediately moved to the offense at the first indication of concerted Republican attacks.
I'll highlight a couple of examples of the current themes, beginning with excerpts from Make-Believe Maverick, a brutally hard-hitting piece on John McCain by Tim Dickinson in the current Rolling Stone:
The myth of John McCain hinges on two transformations — from pampered flyboy to selfless patriot, and from Keating crony to incorruptible reformer — that simply never happened. But there is one serious conversion that has taken root in McCain: his transformation from a cautious realist on foreign policy into a reckless cheerleader of neoconservatism.
...Indeed, McCain's neocon makeover is so extreme that Republican generals like Colin Powell and Brent Scowcroft have refused to endorse their party's nominee. "The fact of the matter is his judgment about what to do in Iraq was wrong," says Richard Clarke, who served as Bush's counterterrorism czar until 2003. "He hung out with people like Ahmad Chalabi. He said Iraq was going to be easy, and he said we were going to war because of terrorism. We should have been fighting in Afghanistan with more troops to go after Al Qaeda. Instead we're at risk because of the mistaken judgment of people like John McCain."
In the end, the essential facts of John McCain's life and career — the pivotal experiences in which he demonstrated his true character — are important because of what they tell us about how he would govern as president. Far from the portrayal he presents of himself as an unflinching maverick with a consistent and reliable record, McCain has demonstrated an unwavering commitment to taking whatever position will advance his own career. He "is the classic opportunist," according to Ross Perot, who worked closely with McCain on POW issues. "He's always reaching for attention and glory."
...Throughout the campaign this year, McCain has tried to make the contest about honor and character. His own writing gives us the standard by which he should be judged. "Always telling the truth in a political campaign," he writes in Worth the Fighting For, "is a great test of character." He adds: "Patriotism that only serves and never risks one's self-interest isn't patriotism at all. It's selfishness. That's a lesson worth relearning from time to time." It's a lesson, it would appear, that the candidate himself could stand to relearn.
Similarly, a Monday L.A. Times article, Mishaps mark John McCain's record as naval aviator, casts doubt on the Republican nominee's vaunted military prowess, noting "McCain's commanders sarcastically dubbed him Ace McCain,'" after a series of pre-Vietnam accidents:
The 23-year-old junior lieutenant wasn't paying attention and erred in using "a power setting too low to maintain level flight in a turn," investigators concluded.The crash was one of three early in McCain's aviation career in which his flying skills and judgment were faulted or questioned by Navy officials.
In his most serious lapse, McCain was "clowning" around in a Skyraider over southern Spain about December 1961 and flew into electrical wires, causing a blackout, according to McCain's own account as well as those of naval officers and enlistees aboard the carrier Intrepid. In another incident, in 1965, McCain crashed a T-2 trainer jet in Virginia.
After McCain was sent to Vietnam, his plane was destroyed in an explosion on the deck of an aircraft carrier in 1967. Three months later, he was shot down during a bombing mission over Hanoi and taken prisoner. He was not faulted in either of those cases and was later lauded for his heroism as a prisoner of war.
As a presidential candidate, McCain has cited his military service -- particularly his 5 1/2 years as a POW. But he has been less forthcoming about his mistakes in the cockpit.
The Times interviewed men who served with McCain and located once-confidential 1960s-era accident reports and formerly classified evaluations of his squadrons during the Vietnam War. This examination of his record revealed a pilot who early in his career was cocky, occasionally cavalier and prone to testing limits.
In today's military, a lapse in judgment that causes a crash can end a pilot's career.
The Associated Press contribution to the theme is McCain linked to group in Iran-Contra case - Organization had ties to former Nazi collaborators, right-wing death squads:
WASHINGTON - GOP presidential nominee John McCain has past connections to a private group that supplied aid to guerrillas seeking to overthrow the leftist government of Nicaragua in the Iran-Contra affair.
McCain's ties are facing renewed scrutiny after his campaign criticized Barack Obama for his link to a former radical who engaged in violent acts 40 years ago.
The U.S. Council for World Freedom was part of an international organization linked to former Nazi collaborators and ultra-right-wing death squads in Central America. The group was dedicated to stamping out communism around the globe.
The council's founder, retired Army Maj. Gen. John Singlaub, said McCain became associated with the organization in the early 1980s as McCain was launching his political career in Arizona. Singlaub said McCain was a supporter but not an active member in the group."McCain was a new guy on the block learning the ropes," Singlaub told The Associated Press in an interview. "I think I met him in the Washington area when he was just a new congressman. We had McCain on the board to make him feel like he wasn't left out. It looks good to have names on a letterhead who are well-known and appreciated.
Finally, the Obama campaign, in its own right, yesterday released Keating Economics: John McCain and the Making of a Financial Crisis, a video documentary on Mr. McCain's role in the notorious 1989 "Keating Five" savings and loan scandals:
Isn't it interesting how all these stories have appeared simultaneously, on the eve of tonight's second Presidential debate?
Not a coincidence, I am sure.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Monday, October 06, 2008
Towed Car Ticketed by Traffic-Cam for Speeding
Here's a gem from Overlawyered:
The traffic camera automatically recorded the license plate of the vehicle going too fast, so the owner (in Plettenberg Bay, South Africa) was automatically mailed a ticket. The only problem: the vehicle was being towed by a tow truck at the time. (Stumblng Tumblr, Aug. 5).
More from commenter Cathy Gellis: “I know someone who canceled her Fastrak/EZ Pass automatic toll account and was charged when the device passed through a toll while being mailed back.”
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Conservative Deregulation and Listeria
Sometimes, I wonder whether 'deregulation' is just a nicely-spun euphemism for negligence-in-waiting.
I'm not just talking about Wall Street, here.
A report today from CBC suggests that deregulation of Canada's food safety inspection procedures my have precluded early detection of the deadly listeria outbreak that has now taken the lives of at least 20 Canadians.
See: Policy change delayed alarm signal over listeria, inspectors say:
Months before the tainted meat from the Maple Leaf Plant in the Toronto area began claiming lives, the Canadian Food Inspection Agency adopted a new policy that meat inspectors now say removed clear language that required companies to report any positive listeria tests directly to inspectors.CFIA inspectors have told the CBC and the Toronto Star that on April 1, they essentially became auditors of the companies' paperwork, which is part of the compliance verification system. CVS details the measures the country's 198 meat processing plants must adopt to ensure they're operating safely."Prior to April 1, [any positive listeria tests] would have had to have been, not only brought to the inspector's attention, but the inspector would have been involved in overseeing the cleanup," said Bob Kingston, head of the union representing CFIA inspectors.Disappointingly, the CBC's report fails to delve more deeply into how, and why, this policy change ocurred.
A July 11, 2008 article from Canada.com, however, may shed additional light on the issue. From Food inspection 'disaster' looms - Expert calls planned deregulation 'unfathomable:
At election time, Canadians need to better understand the root causes of these disturbing events that have seriously undermined national confidence in the safety of our food.OTTAWA - A government plan to transfer key parts of food inspection to industry so companies can police themselves will put the health of Canadians at risk, according to leading food safety experts who have reviewed the confidential blueprint. The plan, drafted by Agriculture Minister Gerry Ritz and approved by the Treasury Board details sweeping changes coming to food inspection in Canada.
The Canadian Food Inspection Agency is also ending funding to producers to test cattle for Bovine Spongiform Encephalopathy (BSE, or Mad Cow Disease) as part of a surveillance program, the document indicates, a move that is expected to save the agency about $24 million over the next three years.
The new system, part of a push to trim the agency's budget by five per cent, was approved last November, but a public announcement "has been deferred owing to significant communications risks," according to the confidential Treasury Board document obtained by Canwest News Service.
The document, addressed to the president of the agency, details how the inspection of meat and meat products will downgrade agency inspectors to an "oversight role, allowing industry to implement food safety control programs and to manage key risks.
To what extent are these increasingly-regular food crises being enabled by deregulatory, Conservative government policies?
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Sunday, October 05, 2008
Gwen Ifill: Palin "Blew Me Off..."
An annoyed Ifill tells Meet the Press: "The understanding was that we were going to have a debate..."
(h/t: Think Progress)
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Canadian Election Race Tightening
According to at least one new poll, Canada's October 14th federal election may well be turning into a horse race, after all.
Scott Tribe points to a current CPAC-Nanos Daily Election Tracking poll with the numbers for the period ending October 4:Conservative Party: 34 %
Liberal Party: 30 %
NDP: 19 %
Bloc Quebecois: 10 %
Green Party: 7 %
And, over at Macleans, even Andrew Coyne says The Tories are in Trouble.
UPDATED:
In the same vein, CTV reports tonight:
The Conservatives are losing steam in key swing ridings in Ontario, B.C. and Quebec, a development that could put a majority government out of arm's reach for Stephen Harper.See: Conservatives losing support in key ridings: poll
Simlarly, CBC reports on a current Harris-Decima poll showing a similar decline in Prime Minister Stephen Harper's electoral fortunes. See: Conservative support slipping, poll suggests
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
John McCain Has Gotham City Worried
The Republican nominee does his best Burgess Meredith imitation yet, as the Penguin goes to Washington...
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Will O.J. Simpson's 'Past' Be A Factor in Judge's Sentencing?
A fascinating discussion at Volokh: Could O.J.'s Sentence for Robbery Take Into Account His Killings?
And given this finding about Simpson's past conduct and therefore his moral character, the judge would be legally allowed to impose a higher sentence than he would on a typical robber, burglar, or what have you. I'm not sure whether the judge in this case would indeed act this way; but the federal Constitution would let him act this way if he so chose.
The post's comments are particularly enlightening - about readers' attitudes and the law.
And forgive one small note on the quote above - the presiding judge, Judge Jackie Glass, is a she, not a he.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Video: Bruce Springsteen - Rising For Obama at Philadelphia
More photos and video here, here, and here.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Tuesday, September 23, 2008
Economist: A "Revaluation of the US"
From today's Washington Post:
The dollar took its steepest one-day drop in years as the financial crisis eroded the nation's basic measure of value, helping to drive U.S. stocks sharply lower and the dollar-based prices of oil and gold sharply higher ...
"This is a revaluation of the U.S.," said C. Fred Bergsten, director of the Peterson Institute for International Economics and a top Treasury Department official during the Carter administration. "Growth is going to be slower, the budget deficit higher, but mostly, the whole U.S. financial system has been thrown into question. People around the world are looking at this and saying, 'Holy Toledo.' "
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Sunday, September 21, 2008
"Confessions of a Sub-Prime Mortgage Baron"
From The Guardian's interview with Richard Bitner, "co-founder and president of Kellner Mortgage Investments, a firm which specialised in providing high-risk loans:"
As a sub-prime mortgage lender, Richard Bitner has not done too badly. He lives in a huge mock Tudor house in a wooded suburb on the edge of Dallas, complete with miniature turrets, an oversize fireplace and wood-panelling... Now out of the game, he compares himself to a drug dealer, acknowledging that his trade has achieved pariah status in the public eye.
... Dishonesty became endemic in loan applications. By the end, Bitner reckons that 70% of submissions to the company from brokers were deceptive. Properties, supposedly objectively appraised, were spectacularly overvalued. He estimates that half of loans were on homes over-egged by up to 10%, a quarter had prices exaggerated by 11% to 20% and the rest were "so overvalued they defied all logic".
"The industry lost its mind," says Bitner. "It went from borderline stupid to downright insane." The notion of "acceptable risk" simply went out of the window: "I watched the margins compress in the industry and I realised no one was providing for the risks."In his book, Bitner recounts a seemingly endless list of tricks used by brokers to push dubious loans. Many simply withheld information, such as the fact that a homebuyer was getting an additional loan to pay for a deposit or that a couple, buying on the basis of joint income, were actually planning to divorce. Others would manipulate figures by knocking up ersatz payslips using desktop publishing programs.
...As a sub-prime lender, Bitner accepts that he was far from blameless. He was, at times, knowingly marketing unrealistic loans. Bitner viewed one common product, providing 95% finance to people with ultra-low credit scores, as "absurd". But he defends the principle of sub-prime lending and maintains that in his five years he did more good than harm.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Thursday, September 18, 2008
Obama: Fire the Whole "Trickle Down" Lot
Associated press reporter Terence Hunt brings us these fighting words (at long last) from Barack Obama:
Obama also heaped criticism and sarcasm on Republican rival John McCain and mocked his promise to fire the head of the Securities and Exchange Commission if elected president.
"I think that's all fine and good but here's what I think," Obama said. "In the next 47 days you can fire the whole trickle-down, on-your-own, look-the-other way crowd in Washington who has led us down this disastrous path.
"Don't just get rid of one guy. Get rid of this administration," he said. "Get rid of this philosophy. Get rid of the do-nothing approach to our economic problem and put somebody in there who's going to fight for you."
Now that's music to my ears...
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Saturday, September 13, 2008
The Political Ad: A Case Study (Video)
A John McCain campaign ad, unwrapped, unplugged and debunked:
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Friday, September 12, 2008
The Great Canadian Gas Price Mystery
Are we missing something here?
September 12, 2008
CNN: Oil drops below $100
NEW YORK (CNNMoney.com) -- Oil prices zig-zagged Friday, briefly dipping below $100 a barrel for the first time in 5 months, as the the fury of a massive hurricane blowing toward refineries on the Texas coast countered .concerns about a global economic slowdown.
U.S. crude for October delivery briefly traded at $99.99 a barrel on the floor of the New York Mercantile Exchange, the first time oil has fallen below the $100 a barrel mark in more than five months.
The last time oil traded below $100 during a session was April 2, when it hit $99.84.
.......
September 12, 2008
Toronto Star - Gas prices jump by 12.9 cents
Motorists got a rude shock this morning when they pulled into gas stations to fill 'e up: a massive overnight hike sent the average price at GTA pumps to $1.36.6.
The increase – 12.9 cents a litre, and more outside the GTA – is one of the highest single-step price hikes in recent memory, blamed by oil refiners on supply uncertainties posed by Hurricane Ike as it rampages across the Gulf of Mexico.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Turning on the President
Chris Matthews, yet another former Iraq War cheerleader, turns on President George Bush:
From C&L
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Sarah Palin on the Bush Doctrine - Video
"May I have a hint, please, Charlie:"
UPDATE - Sptember 13, 2008:
An Andrew Sullivan reader nails it:
A reader writes:
After watching that interview, can anyone honestly say that they think that Sarah Palin, the person who would take over the country in the event something happens to McCain, has more knowledge of policy than Charlie Gibson, the person giving the interview?
And isn't it supposed to be the other way around?
...Okay, isn't it at least supposed to be close??
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Friday, September 05, 2008
PM Announces Supreme Court of Canada Nominee: N.S. Appeal Court Justice Thomas A. Cromwell
More on the nomination from this Government of Canada press release: “Thomas Cromwell’s candidacy was highly recommended by judges, lawyers and other Atlantic Canadians,” said Prime Minister Harper. “He is well qualified to serve on the country’s highest court.” Mr. Justice Cromwell is an eminently qualified jurist.. In 1997 the government of former Prime Minister Jean Chrétien appointed him directly to the Nova Scotia Court of Appeal. Cromwell is expected to appear before a parliamentary committee that will interview the nominee before the government appoints him. Cromwell, 56, from Kingston, Ont., initially studied music but got his law degree in Ontario in 1976. He practised and taught law, including two stints at the Dalhousie Law School in Halifax. He was the executive legal officer in the chambers of the Supreme Court's chief justice for three years. He first became a Nova Scotia appeals judge in 1997.
Prime Minister Stephen Harper today announced his nomination of the Honourable Mr. Justice Thomas A. Cromwell of the Nova Scotia Court of Appeal to fill the existing judicial vacancy at the Supreme Court of Canada.CBC also provides its coverage here, and adds the following background:- Garry J. Wise, Toronto
Introducing the Wise Law Office Quarterly Journal
Today, we are very pleased to be launching the Wise Law Office Quarterly Journal, our firm and blog's long-planned newsletter.
Q.J. will be published four times a year, and will feature a compilation of articles on each season's most significant and interesting legal developments, as published here at Wise Law Blog, at Bar-ex, and other locations online and elsewhere.
As I indicated in our inaugural issue, we are glad for the opportunity this publication brings us to stay in better touch with our clients, colleagues and Wise Law Blog readers.
Sign-up is easy. Click on the photo above, or click here to subscribe securely and confidentially.
We're looking forward to reaching you each quarter with Q.J.
Many thanks to Sandra Bekhor and Sarah Halliday for their guidance and direction in this project.
And who knows - we may even be able to do an election special edition soon.
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Thursday, September 04, 2008
Ontario Court of Appeal Sets Aside $1.9 Million Award for "Client Poaching:" Restrictive Covenant Unenforceable
In an important decision that reaffirms the limited enforceability of non-competition covenants in Canadian employment agreements, the Court of Appeal for Ontario has reversed a September, 2007 trial ruling of Mr. Justice G.E. Taylor of Ontario' Superior Court of Justice.
At trial in H. L. Staebler Company Limited v. Tim James Allan, et al., two Kitchener, Ontario insurance salespersons and their new employer were ordered to pay damages of $1.9 million to the salespersons' former brokerage, H.L. Staebler Company Limited.
Staebler commenced the action after its salespersons left to join Stevenson and Hunt Insurance Brokers Limited, a competing brokerage. The employees brought their entire books of business to their new employer when they changed brokerages.
In ruling against the employees, the trial court enforced a two-year non-solicitation covenant that precluded them from "doing business" with the clients of their former brokerage for a two year period following any termination of their employment with Staebler. The court also held that Stevenson and Hunt was liable for inducing the salespersons to breach their employment agreements with Staebler.
- For our report on the trial court's decision see: Former Employees and New Employer Ordered to pay $1.9 million for "Client Poaching" as Ontario Court Enforces Two-Year Non-Solicitation Covenants.
On appeal, Madame Justice Eileen Gillese, for the Court, reviewed the law applicable to non-competition and non-solicitation agreements in Ontario. The Court unanimously ruled that the restrictive covenants in this case were unreasonable in scope, given the non-managerial roles of the salespersons involved and the "overly broad" restraints imposed by the covenants upon the salespersons' ability to freely compete in the industry:
[33] There is no dispute about the legal principles that apply when determining whether a restrictive covenant in an employment contract is enforceable, as those principles have long been settled. Several decades ago in Elsley, the seminal Canadian case on this matter, Dickson J. described the principles as “well-established”.[2] He stated the test in plain terms: such a covenant is enforceable “only if it is reasonable between the parties and with reference to the public interest”.[3]
[34] This test reflects the competing principles that must be balanced when a court is called on to decide the validity of such a covenant. On the one hand, there is the “important public interest in discouraging restraints on trade, and maintaining free and open competition unencumbered by the fetters of restrictive covenants”.[4] Open competition benefits both society and the affected employees. Society benefits from having greater choice and employees benefit as they have greater employment opportunities. On the other hand, however, “the courts have been disinclined to restrict the right to contract, particularly when that right has been exercised by knowledgeable persons of equal bargaining power”.[5]
[35] While an overly broad restraint on an individual’s freedom to compete will generally be unenforceable, the courts must recognize and afford “reasonable protection to trade secrets, confidential information, and trade connections of the employer.”[6] In the present case, there is no suggestion that trade secrets or confidential information is involved. It is Staebler’s “trade connections” that warrant protection.
[36] Reasonableness is the mechanism by which a court decides whether a covenant is “overly broad” or is only that which is reasonably required for the employer’s protection. But how is a court to determine whether any given restrictive covenant is “reasonable”? Elsley offers a framework for making such a determination. The starting point is “an overall assessment of the clause, the agreement within which it is found, and all of the surrounding circumstances”.[7] Thereafter, three factors must be considered. First, did the employer have a proprietary interest entitled to protection? Second, are the temporal or spatial features of the covenant too broad? And, third, is the covenant unenforceable as being against competition generally, and not limited to proscribing solicitation of clients of the former employer?[8]
...[54] My view that Staebler has not discharged the burden of establishing that the Restrictive Covenant was reasonable[11] as between the parties is reinforced on a consideration of the third factor.
[55] A non-solicitation clause is sufficient in conventional employer/employee situations.[12] The Employees were two of ten commercial insurance salespeople that worked for Staebler. They did not play an exceptional role in the Staebler business – they were ordinary salespeople. They were not managers, directors or key employees. They did not stand in a fiduciary relationship with Staebler.
[56] Although the Employees had close personal relationships with their clients, that is the industry norm. Those relationships were not exclusive; other Staebler employees served the clients in various capacities. This is an important difference between the role that the Employees played at Staebler and that of Mr. Elsley who “was the business”.[13] Another significant difference between the present case and Elsley is that the Employees had no special knowledge of or influence over the Staebler business whereas Mr. Elsley “had control of [the employer’s] trade connections”.[14] Furthermore, and again in contradistinction to Elsley, there was an imbalance of bargaining power between the Employees and Staebler when the employment contracts were negotiated whereas Mr. Elsley bargained as an equal when selling his business and then carried on as its general manager.
[57] The 50 mile radius clause which Staebler had with five of its other commercial salespeople is significant. Under its terms, those employees could solicit their clients and customers and conduct business with Staebler clients so long as they did so outside of a 50 mile radius of the Waterloo region. No explanation was given to justify this differential treatment among Staebler’s commercial insurance salespeople which leads me to conclude that Staebler itself viewed the 50 mile radius clause as sufficient protection of its interest. Clearly, the terms of the Restrictive Covenant are far more restrictive than are those of the 50 mile radius clause.[15]
[58] Other provincial appellate courts have affirmed that suitably restricted non-solicitation clauses are likely to be found to be reasonable for “ordinary” salespeople in the insurance brokerage industry whereas non-competition clauses are not. See, for example, Valley First Financial Services Ltd. v. Trach, [2004] B.C.J. No. 1127 (C.A.).
[59] It follows from my determination that the Restrictive Covenant is not enforceable that Stevenson & Hunt are not liable for inducing a breach of contract.
For the full text of the Court of Appeal's ruling, see: H.L. Staebler Company Limited v. Allan, 2008 ONCA 576 (CanLII)
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Subscribe to:
Posts (Atom)
