Wise Law Blog

Stop Motion

2009-07-19T11:23:00.001-04:00

Your Sunday feel-good video:

(h/t - David Silverberg)

- Garry J. Wise, Toronto

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Rachel's Bits and Briefs

2009-07-19T10:36:00.012-04:00

Here are a few notes for the weekend:

Ontario Criminal Lawyers' Legal Aid Boycott Expands

An Ontario Legal Aid boycott by criminal lawyers has now expanded to reach Kingston and Thunder Bay, reports the Law Times. The Criminal Lawyers Association (CLA) is organizing quickly in to effect change to a legal aid program that it argues has been “broken for over 20 years.”

“A lot of the work we’re doing for free. The Crown’s office and the judges are being compensated handsomely for the system to run, and we haven’t been compensated in the last 20 years adequately at all” stated Gil Labine, the Thunder Bay CLA’s Regional Director.

CLA President Frank Addario recently met with Attorney General Chris Bentley to discuss the association’s agenda. Mr. Bentley "was not able to commit at this time to the improvements that are critical to ensuring a sustainable and equitable legal aid system,” said Mr. Addario. Currently, Ontario's maximum legal aid rate is $98.00 per hour, which many lawyers feel fails to address their high overhead costs.

The Globe & Mail reports that over fifty Law professors have added their support to the boycott as has the Law Society of Upper Canada. which released the following statement directed towards the Attorney General:

“We believe that access to justice is not an abstract notion, but a constant public policy challenge that requires adequate public funding.”

(Image courtesy of http://www.cartoonstock.com/)

Is it Time to Update Your Passport Photo?

The Toronto Star reported July 1st that a Toronto woman was jailed, fined and detained in Kenya for “no longer looking like her passport photo.”

Suaad Mohamud Haji, 31, stated that she “has lost weight, changed her glasses and maybe looks a bit darker-skinned since the photo was taken more than four years ago.” She was held in jail for 8 days, required to posy bail of $2,500.00 (U.S.) and has been waiting for 2 months to hear back about a hearing that could lead to further jail time.

The single mother of a twelve-year-old son flew to Kenya to visit her sick mother and upon her May 17 return flight, was detained. Ms. Haji states in the article that she leaves messages for the Canadian High Commission every day and “nobody returns her calls.”

The Toronto resident faces a court hearing July 21 and fears being sent back to jail if Canada will not vouch for her.

- Rachel Opal Spence, Legal Assistant, Toronto

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Dealing With Antiques On Marital Breakdown

2009-07-19T10:16:00.005-04:00

A recent decision of the Supreme Court of British Columbia confirms that trying to predict how a judge with deal with the division of antiques upon marital breakdown is futile, and that it’s best to resolve at least that one issue outside of the courtroom.

In the December, 2008, case of Lane v. Creighton, The Honourable Madam Justice Bruce was charged with deciding whether to order the antiques purchased by Melodie Lane and David Creighton during their 17 years of cohabitation, sold, or divided between them; who should pay for the storage costs incurred by Dr. Creighton after the parties’ separation; and all associated logistics. A compounding issue was that while an appraisal pegged the value of the antiques at $30,820, at one time Dr. Creighton had estimated that they were worth $200,000.

Dr. Creighton and Ms. Lane married in 1981, and separated in 1998. They had three children. The family continued to live together in the matrimonial home until late 2000, when Ms. Lane commenced court proceedings. In the course of eight years of litigation leading to the trial decision, their struggles and allegations escalated, and resulted in the court having to decide almost every issue imaginable, including: custody and access; child and spousal support; who was to blame for alienating the children from which spouse; whether Ms. Lane was mentally ill as repeatedly alleged by Dr. Creighton; and their acrimonious dispute over the sale and division of assets, including their collectibles.

Of course given this backdrop it should come as no surprise that Justice Bruce found that there was clear evidence that “there can be no trust between these individuals.” That being the case, why did she order Dr. Creighton alone to have conduct of the sale of the antiques simply because he had possession of them, and grant him authority to approve of any price offered without Ms. Lane’s consent (though she ordered him to provide an accounting)?

Dr. Creighton had retained the antiques since separation, initially in his garage. But between 2003, and the date of trial, he had been paying between $240 and $270 a month in storage fees … approximately $18,000 paid out altogether! Dr. Creighton never offered his wife the opportunity to hold onto any of the antiques. Ms. Lane never knew that her husband was incurring storage costs. But in the end Justice Bruce ordered that Ms. Lane was to be responsible for half of the costs up until the date of her judgment.

Dr. Creighton submitted that the antiques should be sold, with the proceeds divided equally after deducting his storage costs. Ms. Lane wanted everything sold, or divided equally, but stated that she should not be saddled with storage costs that she did not know were being incurred. She was agreeable to accepting half of their appraised value, somewhat surprising since her husband had at one point in time commented that they were worth more than seven times that amount.

The judge opined that it was difficult to strike a balance between on the one hand Ms. Lane’s position that she should not have to be responsible for costs she did not know were being incurred and over which she had no control, and on the other the fact that Dr. Creighton went to considerable expense storing the items and did not treat them as his own by selling or otherwise disposing of them, as often occurs in matrimonial disputes. The question as to the true value of the antiques also troubled the judge.

Justice Bruce concluded that the only fair means of allocating a value to and dividing the antiques was to have them sold. She ordered that Dr. Creighton be reimbursed for his storage costs out of the proceeds before they were divided equally. The incentive that the court gave to Dr. Creighton to sell the antiques on a timely basis, was that he alone was to bear the storage costs from the date of the judgment until their disposition. Finally, Justice Bruce ordered that in the event that Dr. Creighton was unable to sell any or all of the antiques by December 31, 2009, he and Ms. Lane were to divide them equally in specie (such as using an alternate choice mechanism), as long as Ms. Lane had paid her husband half of the storage costs incurred over the seven year period.

The decision may appear reasonable, but leaves two unanswered questions:

1) If the judge was prepared to have the parties divide up any remaining antiques, why didn’t she just order an alternate choice means of distribution in the first place, with Ms. Lane having to reimburse Dr. Creighton for half of his storage costs? A coin toss could have easily resolved the issue of who chooses first, and if there was one antique worth a great deal more than the rest, two other items could have been lumped together to reduce any financial inequity resulting from the coin toss. After all, she did order that precise resolution in the event some or all were not sold, so she must have been comfortable with how it would unfold. It would have avoided an extra step; enabled each party to retain half of the collectibles; and redressed any power imbalance resulting from Dr. Creighton having complete control.

2) Why did the Judge entrust the conduct of the sale to one party, when she knew that there was that level of mistrust and acrimony between the spouses, when should could have ordered an independent third party chosen by the spouses to conduct the sale?

The answer leads us to the lessons to be learned, and provides some insight into the role of the court in such disputes, and the discretion which a superior court judge exercises.

When rendering decisions, judges usually cite legislation and case law as precedents. They generally follow laws which reference broad yet exacting principles of financial fairness. But when it comes to asset distribution, their discretion is almost boundless as long as monetary equity prevails: division of assets vs. their sale; who gets what and by what means; the extent to which appraisal evidence will be accepted; etc. The adage “you never know what a judge will do” applies in spades to resolving disputes concerning assets.

Many family law lawyers refuse to deal with the division of household contents at the trial level, and basically insist that spouses either find a way to resolve the matter on their own, with minimal assistance of counsel, or through mediation. And many judges do not see that their role includes dealing with such minutiae. Of course there are exceptions, such as in the 2006, Saskatchewan decision in Cey v. Cey, where the judge considered who should get the antique dining room suite based upon which spouse had more of an emotional attachment to it.

If you cherish your antiques, play an active role in their division upon separation, outside of the courtroom, rather than leave the decision to a government employee. If the battle with your estranged spouse is bitter, and you hear “I don’t care, let the judge order everything sold,” remember that it might just be posturing. When a calmer moment emerges, seize the opportunity, through negotiation, to try to retain at least part of what you’ve spent years collecting.

You’ll be happier for it.

Read the B.C. Supreme Court's complete decision here: Lane v. Creighton, 2008 BCSC 1689 (CanLII)

- Alvin Starkman, Oaxaca, Mexico

For 28 years Alvin Starkman has resented that his first wife ended up with the oak roll-top, while he got the Victorian sleigh style brass bed. Alvin is a member of The Law Society of Upper Canada. However, this article is not intended to be and should not be relied upon as constituting legal advice or opinion. Alvin and Arlene, former Toronto residents and collectors of Canadiana, moved to Mexico in 2004. They operate Casa Machaya Oaxaca Bed & Breakfast.

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

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The Case That Perry Mason Lost

2009-07-18T02:30:00.009-04:00

Judge Sonia Sotomayor may have been stumped by Senator Al Franken's question about the one case that Perry Mason "lost," but with the help of Google, we at Wise Law Blog are not.

Here, then, is the verdict from The Case of the Deadly Verdict (10/17/1963):

Mr. Mason would have the last laugh, however, having suffered this humiliating defeat at the hands of Hamilton Berger only because his client withheld evidence that proved her own innocence.

By the end of the episode, Perry Mason had worked his magic, and she was a free woman again.

- Garry J. Wise, Toronto

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LawPRO Webinar on Fraud Against Lawyers Now Online

2009-07-18T02:04:00.004-04:00

Dan Pinnington of LawPRO has posted the following notice at Slaw that will be of interest to Ontario lawyers:

On May 26 LAWPRO put on a special webinar aimed at helping lawyers to avoid being the victims of fraud. It was hosted and broadcast by the Ontario Bar Association.
You can now listen to a free MP3 of this program, and follow along with the program PowerPoint.

- Garry J. Wise, Toronto

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The Sotomayor Tapes

2009-07-18T01:17:00.006-04:00

Politico has obtained and published audio of appeal hearings presided over by U.S. Supreme Court nominee Sonia Sotomayor.

The tapes are a fascinating study of the appellate process.

For what its worth, I'm not hearing much at all in the way of the storied "temperament" issues regarding Justice Sotomayor, in spite of the headline of the Politico story that introduces the audio recordings, Court Tapes Show Blunt Sotomayor.

She appears to be an astute, informed and assertive judge, who asks challenging and probing questions that keep counsel on their toes - which, of course, is exactly what an appellate Judge ought to be doing.

In other words, the temperament storyline is yet another instance of a manufactured Republican talking point that now, quite properly, will bite the dust.

- Garry J. Wise, Toronto

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Mother's Refusal of "Required" C-Section: Is it Child Abuse?

2009-07-17T12:16:00.009-04:00

Volokh reports on New Jersey Division of Youth and Family Services v. V.M. and B.G., a fascinating decision by the Superior Court of the New Jersey Appellate Division, reversing a trial judge's ruling that a mother's refusal to consent to a Cesarean section that had been urged by attending physicians constituted child abuse or neglect, justifying intervention by State child welfare authorities.

The appeal court did, however, uphold the child's placement in foster care for other reasons, based on findings of post-birth, erratic parental behaviour.

From the appellate ruling:

Defendants V.M. and B.G. are the biological parents of J.M.G., born on April 16, 2006. During her hospitalization in anticipation of J.M.G.'s delivery, V.M. demonstrated combative and erratic behavior including a refusal to consent to a cesarean section (c-section)1. Despite the medical opinion that the fetus demonstrated signs of distress and that the procedure was necessary to avoid imminent danger to the fetus, the child was born by vaginal delivery without incident.
After the birth of the child, plaintiff Division of Youth and Family Services (DYFS) investigated. It learned of V.M.'s refusal to consent to the c-section and discovered that V.M. had been under psychiatric care for twelve years prior to J.M.G.'s birth. Moreover, V.M. was not forthcoming about her treatment or diagnosis. B.G. also refused to cooperate with DYFS's efforts to obtain information. DYFS commenced a Title 9 proceeding pursuant to the Abandonment, Abuse, Cruelty and Neglect Act (the Act), N.J.S.A. 9:6-8.21 to -8.106, and placed J.M.G. in its custody.
... If V.M.'s fetus was not a child under this statute, then any decisions that she made with regard to prenatal treatment and surgery cannot form the basis of a finding of abuse and neglect. The judge did not base his finding solely on V.M.'s refusal to consent to a c-section, however, V.M.'s refusal to consent to invasive procedures clearly was a major consideration in his decision.
... The decision to undergo an invasive procedure such as a c-section belongs uniquely to the prospective mother after consultation with her physicians. To allow such a decision to factor into potential charges of abuse or neglect requires a prospective mother to subjugate her personal decision to a governmental agency's statutory interpretation creating a scenario that was neither contemplated nor incorporated within the four corners of the relevant statutory language. Her decision on matters as critical as this invasive procedure must be made without interference or threat. V.M.'s decision to forego a c-section had no place in these proceedings.

As to the child's father (B.G.), the court added:

The judge's order indicates that a finding of abuse and neglect was made against B.G. Any such finding was clearly in error. As I have discussed, supra, a finding of abuse and neglect cannot be based on a mother's medical decisions during pregnancy. Moreover, even if V.M.'s other actions had endangered the child, B.G. could not have forced his wife to cooperate with the hospital staff. Any finding of abuse or neglect on B.G.'s part was clearly not supported by the record, and DYFS essentially concedes this point on appeal.

- Garry J. Wise, Toronto

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Quebec Common Law Spouse Loses Constitutional Challenge, Denied Spousal Support, Property Division

2009-07-17T02:50:00.009-04:00

A Quebec billionaire's former common-law spouse has lost her constitutional challenge against provisions of Quebec's Civil Code that narrowly limit the entitlements of unmarried partners in the Province upon relationship breakdown.

She claimed payment of spousal support from her former spouse as well an entitlement to sharing of the family's property.

According to media reports, the former spouse already receives child support and related payments in excess of $35,000 monthly. The couple cohabited for approximateky ten years.

The former spouse indicates that she intends to appeal the decision.

Montreal Gazette reports on the ruling of Quebec's Superior Court:

MONTREAL — The former common-law spouse of a Quebec billionaire has lost her bid to get the same rights and obligations as people who are legally married.
After a heated and sometimes emotional court case last January, Superior Court Justice Carole Hallee issued her 63-page judgment Thursday, saying that recognizing all couples as "married" would remove some people's freedom of choice not to marry.
She also said that no evidence was presented that showed treatment of common-law couples was discriminatory — a comment that had lawyer Anne-France Goldwater scratching her head, wondering "if we were in the same trial."
Goldwater, who represented the woman, said she will appeal all the way to the Supreme Court if necessary.
"Social change comes slowly (because) you have to fight people who are entrenched," she said. "Nobody fights discrimination who hasn't lived it and it's going to take going to higher courts."

CBC also reports on the case:

The woman known as "Lola" lost her constitutional challenge on Thursday to try to get unmarried couples treated the same as married couples when their relationships end.
Lola asked the Quebec Superior Court to strike down a series of federal and provincial laws. She also asked for a $50-million lump-sum payment from her former spouse and $56,000 a month in alimony.
...Quebec Superior Court Justice Carole Hallée said under existing law, partners in a common-law relationship have no rights, no duties and no responsibilities to each other; no matter how many years they've lived together.
...The judge said current laws do, in fact, protect the rights of unmarried people who choose to live together.

We have previously written about this case in March, 2008 and in January, 2009:

- Garry J. Wise, Toronto

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Kids in Ontario Summer Camps Screened for H1N1 Flu, 3 Cases Reported

2009-07-16T12:20:00.004-04:00

This is a very disturbing report from CTV News on the emergence of H!N1 flu at three Ontario summer camps:

Officials at summer camps in areas across Canada are screening new campers for signs of swine flu, after three Ontario camps reported that kids there had become sick with the worrisome flu.

All the cases in Ontario cottage country so far have been mild and there has been no need to hospitalize any of them or close any camps, says Dr. Colin Lee of the Simcoe Muskoka District Health Unit.
"A lot of them have gone home to rest up. It's more comfortable for them to be at home," Lee told Canada AM Thursday. "For those who are staying who are ill, they're being isolated from the other campers until they are feeling better."
The Olympia sports camp, just outside of Huntsville, has a number of cases and is now screening all children at bus pickups. Kids who are ill are being sent home.
Camp Ramah, near Bracebridge, says several campers came down with mild cases of the virus but recovered in a matter of days. The third camp has not been publicly identified.

The World Health Organization has categorized the current pandemic as a Phase 6 outbreak, characterized by "widespread human infection":

Phase 6, the pandemic phase, is characterized by community level outbreaks in at least one other country in a different WHO region in addition to the criteria defined in Phase 5. Designation of this phase will indicate that a global pandemic is under way.
During the post-peak period, pandemic disease levels in most countries with adequate surveillance will have dropped below peak observed levels. The post-peak period signifies that pandemic activity appears to be decreasing; however, it is uncertain if additional waves will occur and countries will need to be prepared for a second wave.
Previous pandemics have been characterized by waves of activity spread over months. Once the level of disease activity drops, a critical communications task will be to balance this information with the possibility of another wave. Pandemic waves can be separated by months and an immediate “at-ease” signal may be premature.

As at July 6, Canada had 7983 reported cases of the H1N1 influenza, with 25 deaths attributed to the outbreak. according to the WHO.

The WHO currently assesses the severity of the outbreak as moderate:

At this time, WHO considers the overall severity of the influenza pandemic to be moderate. This assessment is based on scientific evidence available to WHO, as well as input from its Member States on the pandemic's impact on their health systems, and their social and economic functioning.
The moderate assessment reflects that:
Most people recover from infection without the need for hospitalization or medical care.
Overall, national levels of severe illness from influenza A(H1N1) appear similar to levels seen during local seasonal influenza periods, although high levels of disease have occurred in some local areas and institutions.
Overall, hospitals and health care systems in most countries have been able to cope with the numbers of people seeking care, although some facilities and systems have been stressed in some localities.
WHO is concerned about current patterns of serious cases and deaths that are occurring primarily among young persons, including the previously healthy and those with pre-existing medical conditions or pregnancy.
Large outbreaks of disease have not yet been reported in many countries, and the full clinical spectrum of disease is not yet known.

- Garry J. Wise, Toronto

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Canada Privacy Commissioner: Facebook Violates Privacy Law

2009-07-16T11:29:00.006-04:00

A report released today by Canada's Privacy Commissioner finds that that Facebook is in violation of PIPEDA, Canada's Personal Information Protection and Electronic Documents Act, and calls upon Facebook to comply with Canadian privacy legislation.

See: Report of Findings into the Complaint Filed by the Canadian Internet Policy and Public Interest Clinic (CIPPIC) against Facebook Inc.Under the Personal Information Protection and Electronic Documents Act by Elizabeth Denham, Assistant Privacy Commissioner of Canada

A news release from the Office of the Commissioner summarizes the report:

OTTAWA, July 16, 2009 — In order to comply with Canadian privacy law, Facebook must take greater responsibility for the personal information in its care, the Privacy Commissioner of Canada said today in announcing the results of an investigation into the popular social networking site’s privacy policies and practices.
“It’s clear that privacy issues are top of mind for Facebook, and yet we found serious privacy gaps in the way the site operates,” says Privacy Commissioner Jennifer Stoddart.
...The Privacy Commissioner’s report recommends more transparency, to ensure that the social networking site’s nearly 12 million Canadian users have the information they need to make meaningful decisions about how widely they share personal information.
The investigation also raised significant concerns around the sharing of users’ personal information with third-party developers creating Facebook applications such as games and quizzes. (There are more than 950,000 developers in some 180 countries.) Facebook lacks adequate safeguards to effectively restrict these outside developers from accessing profile information, the investigation found.
The report recommended a number of changes, including technological measures to ensure that developers can only access the user information actually required to run a specific application, and also to prevent the disclosure of personal information of any of the user’s friends who are not themselves signing up for an application.
The investigation also found that Facebook has a policy of indefinitely keeping the personal information of people who have deactivated their accounts – a violation of the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada’s private-sector privacy law. The law is clear that organizations must retain personal information only for as long as is necessary to meet appropriate purposes.
Recommendations to Facebook included the adoption of a retention policy whereby personal information in deactivated accounts is deleted after a reasonable length of time.
Facebook has agreed to adopt many of the recommendations stemming from the Privacy Commissioner’s investigation or, in some cases, has proposed reasonable alternatives to the measures recommended. However, there remain a number of recommendations that Facebook has not yet agreed to implement.
“We urge Facebook to implement all of our recommendations to further enhance their site, ensure they are in compliance with privacy law, and ultimately show themselves as models of privacy,” says Assistant Commissioner Elizabeth Denham, who led the investigation on behalf of the Office.

CBC News also reports on the Privacy Commissioner's findings today:

Facebook shares personal information with developers who create games and quizzes in a way that breaches Canadian privacy law, the office of the Privacy Commissioner of Canada has found.

The popular social networking site, which is used by 12 million Canadians, doesn't have enough safeguards to prevent those third-party developers from getting "unauthorized" access to users' personal information, said the report released Thursday by assistant privacy commissioner Elizabeth Denham.

The report also found Facebook continues to breach the Personal Information Protection and Electronic Documents Act in three other ways:

It keeps information from accounts deactivated by users indefinitely and does not make it clear that users can also choose to delete their accounts rather than just deactivate them. Nor does it explain the difference in its privacy policy.
It keeps the profiles of deceased users for "memorial purposes," including this in its terms of use. That means users cannot opt out.
It allows users to post personal information about non-users without their consent. For example, it allows them to tag photos and videos of non-users with their names, and provide Facebook with their email addresses to invite them to join the site. It keeps the addresses indefinitely.

- Garry J. Wise, Toronto

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The New United Kingdom Supreme Court

2009-07-16T02:01:00.006-04:00

Times Online reports that Britain's new Supreme Court is readying to open on October 1st:

Yesterday Lord Bach, the Justice Minister, welcomed the media for a first glimpse of the newly refurbished court, fashioned from the Grade II listed building that was once the courts of Middlesex Guildhall. This was a point of “historic change”, he said. The opening would be a “major constitutional milestone”.
The project, which separates physically and constitutionally the judiciary at its apex from the legislature, has cost nearly £60 million. Running costs are expected to reach £12.3 million, plus £1.2 million now paid in pension and national insurance for the 12 law lords - soon to be Supreme Court Justices - and another £300,000 for “transitional set up costs”.

- Garry J. Wise, Toronto

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Canada's Medical Care Lottery

2009-07-16T01:33:00.015-04:00

So this is what passes as serious commentary on health care reform in the United States of America.

It will be news to all of us on this side of the border, but apparently, Canada has a lottery system to "decide who gets to go see a doctor this month." "That's why people are suing."

Ask Glen Beck - he knows... (at 1:53 of the excruciating video below):

- Garry J. Wise, Toronto

UPDATE - July 18, 2009

In response to some of our commenters, surely you are not confusing a unique episode in Gander, Newfoundland with the ordinary operations, nationwide, of Canada's health care system:

In May of this year, the community of Gander, NF elected to hold a 'lottery' style selection of patients for two newly arrived Family Physicians. Although innovative, this approach is unlikely to help in solving a worsening shortage of doctors nationwide.

The problem of physician shortages in remote, small communities such as Gander is a significant one in both Canada and the U.S. This is a real and difficult challenge in public and private health care jurisdictions, alike.

For discussion of physician shortages in "medically under-served" U.S. communities, see NEJM Article Examines U.S. Physician Shortage, a commentary on the New England Journal of Medicine's examination of this problem:

"Given that Medicare beneficiaries and persons with private insurance are reported to have, in general, ready access to care," it is the uninsured "who have a difficult time finding a physician," as well as Medicaid beneficiaries and the 20% of U.S. residents who live in federally designated "medically underserved" areas, Iglehart writes, adding that physician recruitment and retention "presents a challenge for community health centers, the medical operations of the Departments of Defense and Veterans Affairs, community hospitals and even group medical practices."

Also see US: physician shortage growing:

In Physician Shortages and the Medically Underserved, The Council of State Governments says that the shortage of physicians in the United States is growing and will affect not only currently underserved areas, but some places where there are now sufficient doctors. States are trying to solve the shortage in a variety of ways.

As well, see CNN's article today, Family Doctors an endangered breed:

This trend has fueled a growing shortage of primary care doctors in the United States. "On the eve of (health care) reform, we have a very real primary care crisis," said Dr. Ted Epperly, president of AAFP.
Epperly estimates that the health care system will be 40,000 doctors short of where it needs to be in the primary care arena by 2020 to support the demand for medical care.
"We need 150,000 family doctors in total by then," Epperly said.

And last but not least, see this post from Jacob Goldstein at the Wall Street Journal Blogs: In Oregon, Health Insurance by Lottery:

Congratulations, you won the lottery — now you can have access to basic medical care!
A few thousand lucky Oregonians will will win state-subsidized health insurance coverage in a lottery this week, the Associated Press reports. About 80,000 others will lose, and remain uninsured.

-G.J.W

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When America Selects a Supreme Court Judge...

2009-07-15T21:34:00.003-04:00

(h/t - Red Tory)

Also see: Sotomayor, Franken both 'Perry Mason' fans

- Garry J. Wise, Toronto

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Canada: Employment Law Update

2009-07-07T23:48:00.010-04:00

I'll note two good articles on recent Canadian employment law rulings that are of considerable importance:

Lawyers Weekly has Suing abusive employers in tort, a fine piece by Steve Levitt on the December, 2008 decision of the Ontario Superior Court in Piresferrerira v. Ayotte and Bell Mobility, [2008] O.J. No. 518. In that case, the employer, Bell Mobility was ordered to pay damages to an employee of $500,095, largely for the abusive and tortious acts of a Bell supervisor. Last month, the telecommunications giant was ordered to pay the additional sum of $225,000.00 in costs

In Judicial Interpretation Of Restrictive Covenants, Ottawa Business Journal provides a good summary by Jordan Plener on the January, 2009 ruling of the Supreme Court of Canada in Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6 (CanLII). In Shafron, the Supreme Court of Canada overturned a ruling of the British Columbia Court of Appeal that had liberally interpreted and enforced a non-competition covenant that purported to restrict a former employee's ability to work in the Greater Vancouver area. The Supreme Court of Canada held the employer to the strict wording of the covenant, which referred to the non-existent entity of the "Metropolitan City of Vancouver" and refused to enforce the covenant. As Mr. Plener succinctly put it, "In arriving at this conclusion, the Supreme Court held that an ambiguous restrictive covenant is prima facie unreasonable and unenforceable."

- Garry J. Wise, Toronto

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On Excessive Tweeting Syndrome

2009-07-07T23:38:00.007-04:00

WebPro News poses the resounding question of our times: Do you unfollow people who tweet too much?

Yes. But only rarely.

Especially tempting are some of those hockey writers who just can't seem to help themselves (but even they get a bye during free agent season).

- Garry J. Wise, Toronto

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Alberto Gonzales Lands New Job

2009-07-07T23:29:00.002-04:00

Alberto Gonzales, former U.S. attorney general, expected to teach at Texas Tech University

Makes me think of that ancient proverb - "Those who can, do. Those who can't teach.... "*

*(And of course, then there was Woody Allen's memorable take on this: "Those who can't do, teach. Those who can't teach, teach gym." )

- Garry J. Wise, Toronto

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Great Headline of the Day

2009-07-07T23:05:00.001-04:00

Farmers blinded by 'Jed Clampett fever from Ottawa Business Journal

- Garry J. Wise, Toronto

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Eddie Greenspan on Michael Jackson

2009-07-07T22:56:00.003-04:00

From the Edmonton Sun:

If a jury says not guilty, that means, in law and in fact, the person found not guilty is innocent. Whether or not people have difficulty accepting this proposition, it is a central tenet in a free country...

You don't have to forget his unusual relationship with young boys, but you should remember what an acquittal means. It means that in life and in death, Jackson is an innocent man.

- Edward L. Greenspan

- Garry J. Wise, Toronto

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Quotable

2009-07-06T04:18:00.002-04:00

Balloon Juice on Sarah Palin and her conservative boosters:

Nothing annoys me more than the conservative myth that to be an ordinary American you have to be a moron. Although it’s probably just a corollary of the myth that to be an ordinary American you have to be conservative.

- Garry J. Wise, Toronto

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Wise Law Blog - Profiled and Reviewed

2009-07-05T17:47:00.014-04:00

Michael Carabash of Dynamic Lawyers has posted an article profiling yours very truly. Here's the link: Profile on Garry Wise: the Employment Lawyer and Legal Tech Guru talks about how technology has changed the legal industry.

Also interesting is Michael's own, personal blog post about our meeting (read it and find out more on lessons to be gleaned from from the sham-wow guy).

Michael also recently completed an interesting personal profile of intrepid law student and Slaw and Law is Cool blawger, Omar Ha-Redeye.

I have learned quite a bit over two recent dinner discussions with Michael and Omar, who are both extremely insightful and knowledgeable about just about everything.

They are among the leaders of a creative, new breed of tech-savvy legal thinkers who are guided by a genuine understanding of how emerging web-based technologies are changing the way lawyers and our clients can and will interact.

Quite a few ideas came out of those two discussions, and Omar, Michael and I will have something very interesting in store for you in the very near future... (shameless teaser alert)

As well, many thanks to lawyer Pei-Shing Wang of Toronto's PSW Blog for a very kind review of Wise Law Blog today. See: Blog Review: Wise Law Blog

- Garry J. Wise, Toronto

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Michael Jackson's Estate

2009-07-05T16:22:00.014-04:00

Michael Jackson's will is now posted online for all to see. Have look - the will itself is fairly standard fare, but Mr. Jackson's reference to Diana Ross as alternate guardian for his children will be at least a little tantalizing for celebrity justice junkies.

USA Today chimes today in with an analysis of the tangled web of the Jackson estate's assets and liabilities. See: Michael Jackson's Estate: The fallout will be monumental:

Even the valuation of Jackson's most valuable asset — his stake in a music catalog whose publishing rights includes Beatles songs — could be subject to protracted debate. Jackson snapped up the catalog for $47.5 million in a 1985 deal that had provided him millions in annual income, and he pocketed $95 million from selling Sony a 50% stake in 2005.
The catalog continued to bankroll a lifestyle that included maintaining the 2,700-acre Neverland Ranch, expensive art purchases and litigation, including a multimillion-dollar out-of-court settlement to the family of a boy who had accused him of molestation. Jackson used the catalog as collateral against assorted loans, with $300 million in debt to Barclays Bank alone.

Business Week also catalogues the challenges ahead in administration of the Jackson estate - see: Settling Michael Jackson's Estate May Be a Thriller.

On a related note, B.C. law blogger Stan Rule explores the Jackson estate, and in the process, provides a concise, comparative primer on estate planning in British Columbia. See: Michael Jackson's Estate Plan at Rule of Law.

- Garry J. Wise, Toronto

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‘Catcher’ Ruling Will Discourage Other Would-Be Parodies?

2009-07-03T13:33:00.001-04:00

A “sequel” to The Catcher in the Rye written by Swedish author Fredrik Colting, a.k.a. “J.D. California,” has been kyboshed by Manhattan judge Deborah Batts, the ABA Journal reports..

The judge ruled that the new book infringed the copyright of the original novel’s author, J.D. Salinger, rejecting claims that 60 Years Later: Coming Through the Rye was transformative and thus a fair use of Salinger’s original work.

The judge said the new book simply rehashed themes of the original, and did not qualify for the “parody” copyright exception, which has been successfully utilized by books such as The Wind Done Gone, which was found to be a true parody of the original novel Gone With the Wind.

Could it be that the attempted Catcher parody was seen, as Holden Caufield might have said, as being a trifle “phony?”

- Bill Rogers, Student-at-Law, Toronto

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Ex-spouse must pay for mental abuse after break up

2009-07-03T13:25:00.002-04:00

An Ontario man who "threatened and harassed" his ex-spouse after they broke up has been ordered to pay $15,000.00 in damages for intentionally inflicting mental distress, plus nearly a quarter million dollars in legal costs.

Law journalist Cristin Schmitz reports in the Ottawa Citizen that Darko Danicic (also known as Danic) deliberately used abusive tactics in a failed attempt to intimidate Traci McLean, his ex-common-law spouse, into dropping her property and spousal support claims.

He wrote McLean crudely abusive letters, denied their romantic involvement, unsuccessfully attempted to get her lawyer disbarred, and threatened to send private intimate photographs of her to her grandmother. Schmitz calls the ruling “unusual, if not unique” in that it awards mental suffering damages in the absence of “assaultive conduct” such as battery or forcible confinement.

- Bill Rogers, Student-at-Law, Toronto

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Blawg Note: Happy Anniversary, Overlawyered

2009-07-02T00:21:00.003-04:00

Congratulations are due to Overlawyered, quite possibly the first law blog, which marked its tenth anniversary yesterday.

- Garry J. Wise, Toronto

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Paying the Bar Bill

2009-07-02T00:07:00.004-04:00

After successfully passing the New York bar exam, aspiring lawyer Robert Bowman has been denied a license to practice law by the Appellate Division of the State Supreme Court - because of an unpaid, $430,000.00 student loan that had accumulated over twenty years, without a single payment ever being made.

The New York Times reports:

In January, the committee of New York lawyers that reviews applications for admission to the bar interviewed Mr. Bowman, studied his history and the debt he had amassed, and called his persistence remarkable. It recommended his approval.
But a group of five state appellate judges decided this spring that his student loans were too big and his efforts to repay them too meager for him to be a lawyer.
...Mr. Bowman, 47, appears to have crossed some unspoken line with his $400,000 in student debt and penalties, accumulated over many years.

The brief, appellate court ruling states:

Our review of the application indicates that the disbursement dates of the loans cover a 20-year period, from as early as 1985. Applicant has not made any substantial payments on the loans. He has not been flexible in his discussions with the loan servicers. Under all the circumstances herein, we conclude that applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law.

- Garry J. Wise, Toronto

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