RSS FeedInterviews on Insite at the B.C. C.A.
Deeper Insite Into Harm Reduction Strategies
I’ve mentioned the controversy surrounding the safe injection sites before. But I went in for a closer look recently in Vancouver, when I attended the appeal by the Crown of the decision of Pitfield J. last year in PHS Community Services Society v. Canada, [2008] B.C.J. No. 951; 293 D.L.R. (4th) 392 (B.C. S.C.) that allowed the facility to stay open.
Omar Ha-Redeye with two Vancouver residents supportive of Insite's programs
The Respondents in this case were seeking the extension of an exemption for the Insite facility under the Controlled Drugs and Substance Act (CDSA).
The opposition to the exception by the Federal Crown, appealing the decision made by the B.C. trial court last summer, was based on the rationale that the science on harm reduction was mixed, and the money could be better allocated elsewhere, according to information by the Minister publicly found on the website.
The Appellants themselves characterized their objections slightly differently. The CDSA formed a regulatory scheme to protect the public from many different types of dangerous substances. In this context of protecting the public, they were well within their jurisdiction of Federal powers to target the program for termination.
The Appellants also rebuffed Federalism arguments of this being a health service exclusively in the provincial jurisdiction by stating that there was no legal requirement by the province to provide this type of service. If harm reduction strategies were explicitly mentioned by statute the situation would be very different.
Juhani’s Law
Juhani’s Law:
The compromise will always be more expensive than either of the suggestions it is compromising.
Why Choose Ivey
Every beginning is a consequence – every beginning ends some thin.
~ Paul Valery
I kid you not; it is 2:52am according to my computer. I just got home from one of those nights that you wish wouldn’t end. I said goodbye to a lot of close friends who graduated today. We laughed, and danced, and drank the night away.
I know that it has been a while since I wrote, and I did not say anything about Ivey’s elective cycle. What could I say? It was an exhilarating six weeks full of simulations, negotiations, presentations, and genuine business opportunities. I enjoyed it very much, and I would have had much to say if my workdays weren’t 12 hours long. But no matter, it was worth it.
Today was convocation, and Ivey’s MBA graduates crossed the stage. As a JD/MBA student, I could not go with them; the nature of my program is, understandably, that I do not get to receive either degree until I complete both. In one year’s time I will finally have my MBA, but I will always remain a proud member of the class of Spring 2009.
Do you want to know the reason why you should choose Ivey for your MBA? It is this: we care about each other.
As you probably know, Ivey’s main competitive advantage is it’s alumni network, but to say it that way sounds cold, unfeeling, and, well, business-like. The truth is that Ivey’s network runs much deeper: it is about fellowship, friendship, and to a certain extent love. Every member of this graduating class has earned my respect and, more importantly, my trust. To a certain extent, each Ivey alumnus now has my respect as well; after all, Ivey’s admission process is rigorous. It was no coincident that this certain group of students was admitted last year, and it was not coincidence in years past; which students make up the next generation will not be a coincidence, either. If you are offered a spot at Ivey, take it because you will fit in. As the career management team is fond of saying, no one gets into Ivey by accidence.
Last week, Ivey held its biannual semi-formal, and I began chatting with a new student. I told him, give your peers your very best and watch as you receive theirs right back. You can learn something from everyone all of the time.
There is not much more that I can write in this blog, except that it will not be my last. You have another year of me, yet, dear reader. With the exception of a few business electives that I must take at the end of the summer to complete my MBA, the rest of my education lies in the faculty of law at Western. However, I am quite suspicious that the rest of my legal education and apprenticeship will symbiotically tied to my time at Ivey.
Congratulations, Class of Spring 2009.
Privy Council In Bank Ruling Wraps Jamaican Judiciary On the Knuckles, Part II
By: Ainsley Brown
The claims advanced by Olint, though ultimately would proven to be groundless is very important because it, gave us a brief glimpse into the subtleties of judicial politics. Before I go any further some context by way of an example I believe would be useful. The words with all due respect, seem quite mundane or you could even say respectful, however, not so in a court room – it is quite disrespectful. The respect for a judge and his or her court room flow naturally from their position and there is no need to remind the judge that you are being respectful. This is something that lawyers and judges know alike, so whenever such words are uttered it is code for hey, judge I am right and you are just full of it – like I said disrespectful.
Though totally unrelated to the case, this example illustrate the point nicely, that words matter and that in the politics of the courtroom they often have much greater meaning than they seem at first glance. Now back to the case.
Olint´s first argument would provide the ground for strongest rebuke by their Lordships of the Jamaican Court of Appeal. Lord Hoffmann even went as far as calling out the reasoning or better yet lack thereof of one of the judges of the Court of Appeal – a one Morrison JA. In the Court of Appeal Morrison JA criticized Mr. Justice Jones, at first instance for disposing of the matter by way of mini-rail, holding that the matter gave rise to a serious issue and ought to be tried. However, Lord Hoffmann goes on to point out, saying of Morrison JA that ¨ he did not explain what the issue would be and their Lordships consider that one has only to read section 4(3) (c) to see that it is irrelevant to any issue in this case.¨
This is Lord Hoffmann´s way of saying: your work is sloppy and you don’t know what you are talking about. Like I said a strong rebuke.
The claim, by the way, was that s. 4(3)(c) of the Banking Act had modified the bank´s contractual right to terminate the banking relationship by giving reasonable notice. Unfortunate for Olint s. 4(3)(c) of the Banking Act is part of the general fit and proper licensing provisions of s.4, under which the Bank of Jamaica grants licenses. It therefore does not take a legally trained mind to see that Olint is simply fishing and that there is not only no serious issue here but no issue at all – no wonder the strong rebuke.
The second argument advanced by Olint was that NCB by closing its accounts was abusing its market position. As I like to call it, and to put it in the Jamaican vernacular: dem a fight gainst man (translated: they are opposed to us) argument. This argument while it has great cultural resonance, and it could be argued reflects a commercial reality; it however has no basis in law.
Firstly, no evidence was furnished that NCB did indeed have a dominant position in the commercial banking sector in Jamaica. However, their Lordships did take judicial notice that NCB was ¨the second largest in Jamaica, with 34-37% of total loans and 30-35% of total deposits, but the Bank of Nova Scotia is larger and there are four other commercial banks in Jamaica, to say nothing of the foreign banks. They are all in competition with each other. It is not easy to acquire dominant position in the banking market.¨ Secondly, even if NCB had a dominant market position the refusal to continue be Olint´s banker does not procure for NCB some market advantage. If anything it does quite the opposite by enabling ¨competitors to pick up another customer if they felt inclined to do so.¨
The third claim by Olint, was that NCB was attempting to induce breaches of contract between itself and its club members. Inducement of breaches of contract is a tort (a civil wrong) that would require not only that NCB knew that it would cause the breach of contract but that it intended to so ( OBG Ltd v Allan 2008). This by far was Olint´s strongest argument I think. However, their Lordships described it as a ¨hopeless proposition.¨ It will be remember from Part I that it was the refusal of Olint to furnish its audited books that kicked off this sequence of events. NCB could not without proper knowledge of the relationship of Olint and its members know or set out to cause breaches of contracts. What Olint was in fact saying was that NCB knew its actions would cause the breach and with this certain knowledge set out to cause the said breach of contractual arrangements. But how can you set out to cause or much less know that a breach would be caused in a contract that you haven’t even seen?
Stay tuned for Part III as it will deal with the injunction issue.
Privy Council In Bank Ruling Wraps Jamaican Judiciary On the Knuckles, Part I
First posted on Commercial Law International on May 12, 2009.
The House of Lords, with its Judicial Committee of the Privy Council hat on, as Jamaica’s court of final appeal, handed down a judgment that is set to have repercussions well beyond the interests of the parties involved. In fact the consequences of this judgment go beyond just banking or investing but engages commercial dispute resolution, specifically commercial litigation.
The injunction is a very important – that should read indispensable – tool in the commercial lawyer’s arsenal. It is a power that is highly discretionary and exercised with sensitivity to the peculiarities of the case which by the way includes the idiosyncrasies judge. It is a power jealously guarded by the judiciary and as a matter of judicial comity and judicial politics the power to exercise this discretion is largely left unquestioned, with limited exception, to a judge at first instance. Therefore, whenever a court, much less the highest one in the land, is critical of the way in which this discretion is or has been exercised by other courts all involved in the legal process have right to take pause.
However before I get into what I believe to be the more important aspect of the ruling I should deal with the ratio of the case – for the non lawyers/ non Latin speakers the ratio or ratio decidendi are the reasons or rational for a decision. It will provide not only context for the more important dissuasion on injunctions but will also bring to the fore the importance of this ruling to the banking sector n Jamaica.
National Commercial Bank Jamaica Limited vs. Olint Corporation Limited, is a case that exemplifies why commercial awareness is global.
The question that their Lordships had to focus their minds on was whether a bank, by giving reasonable notice, could lawfully close an account that was not n debit, where there was no evidence of the account being used for unlawful purposes? In the judgment delivered by Lord Hoffmann, ¨their Lordships have no doubt that in the absence of express contrary agreement or statutory impediment, a contract by a bank to provide banking services to a customer is terminable upon reasonable notice.¨
The facts of the case, in brief are: Olint provided administrative and other services to an investment club. The club allegedly derived its profits from foreign exchange trading which was proffered as an explanation for its high rate of returns to its member. It opened two accounts with National Commercial Bank (NCB) in 2005 and a third in 2007. Near the end of 2006 Olint, along with other investment clubs, began to attract very unfavorable coverage in the press . They faced allegations that they were operating a Ponzi scheme where returns to older investors were being paid out of money from newer investors.
It is interesting to note that Olint and other investment clubs sprouted up as a specific market response to the lack of investment alternatives, especially for the lower and middle strata of Jamaican society. In this respect they were in direct competition with the financial establishment - the commercial banks and other financial institutions.
In August of 2007 NCB as per its anti-money laundering and terrorist financing legal obligations – but no doubt also motivated by its concerns over the fraud allegations – asked to see the audited accounts of Olint. None was forthcoming. NCB being apprehensive that the allegations could turn out to be true, opening it up for reputational damage and or claims for negligent or dishonest assistance, decided to end is relationship with Olint. It wrote to Olint in November informing them of the decision to close their accounts on December 17 – a notice period of 32 days.
This action by NCB only added to the atmosphere at the time that NCB and the financial establishment were using at best the strictures of the law or at worst under handed tactics in order to remove the competition that Olint and the other investment clubs offered. To put it in the Jamaican vernacular: dem a fight gainst man (translated: they are opposed to us) . Unfortunately, even if this is a commercial reality and I offer no opinion pro or con, it finds no basis in law.
In response on November 21st Olint asked NCB for an extension to March 14 2008, NCB believing that this period was too long agreed to extend until January 14 2008. On January 1, days before the extension period was going to expire Olint without any notice successfully applied ex parte (from (by or for) one party) injunction preventing NCB from closing its accounts until January 15th. An application inter parties (between the parties) came before Mr. Justice Jones on the 17th and 18th of March. He dismissed the application because he did not find that it gave rise to a serious issue. Olint appealed and on July 18th 2008 the Court of Appeal grated the injunction until trail.
Based on the allegations in the particulars of claim served by Olint, it did not claim that the extended period was too short, ¨instead , it is alleged that the bank was acting maliciously, contrary to its statutory obligations under the banking Act and Fair Competition Act and with the intent of inducing breaches of contract between the company and members of the investment club.¨ their Lordship review each of these agreements and had no problem dismissed each in turn as being baseless.
Stay tuned for Part II.
Time for a Sex(y) Party!
British Columbians are going to the polls today. The Vancouver race is shaping up to be, it must be said, particularly stimulating.
The Sex Party — the party of “politics for a sex-positive future” — aims to promote healthy sex lives for its constituents, responsible (uncensored) coverage of sexual issues in media, and reform of youth sexual education (in order to encourage a “gradual and disciplined” approach to sexual activity among students, with particular focus on tolerance of different sexual identities). The party would repeal “sex-negative” laws and regulations, allow Criminal Code prohibitions against public nudity to go unenforced, and rename Victoria Day to honour Eros, a Greek fertility god (instead of commemorating a monarch “legendary for her negative attitudes toward female sexuality”).
Candidates include party leader (and lawyer!) John Ince (Vancouver Point Grey), who owns sex shop “The Art of Loving” in the Vancouver area; Dietrich Pajonk (Vancouver Hastings), a sex-positive activist and UBC radio producer; and Scarlett Lake (Vancouver West End), a former exotic dancer and self-described “madam” who operates an escort service.
While Law is Cool is not prepared to endorse the Sex Party outright, the party’s suggestion that leaders’ debates should be conducted in the nude is one that intrigues the anarchist elements of this blog, as it could bring the government, er, to its knees.
Everything sounds dirtier when you’re writing about the Sex Party.
SCC: Unions Cannot Use Courts for Fines
The Supreme Court of Canada refused to hear an appeal this past week of an Ontario Superior Court’s decision finding in Jeffrey Birch and April Luberti vs. the Union of Taxation Employees Local 70030, that the Public Service Alliance of Canada could not use the courts to enforce fines as a disciplinary measure against members.
PSAC President, John Gordon, said,
We felt the judgment that was passed before was wrong. But, obviously, we can’t take this any further.
By-laws were amended in 1991 after a major strike, where members felt stronger enforcement was required. After the October 2004 government worker strike, two members, Jeff Birch and April Luberti, decided to fight the union.
Justice Robert Smith of the Ontario court felt the fines were too onerous and high, and instead suggested raising strike pay and improving worker education. The fines were roughly equivalent to a day’s pay for each day a worker refused to go on strike.
Michael Lynk, Associate Dean of Law at the University of Western Ontario, said,
They have lost a significant institutional check in ensuring solidarity with their members. It’s virtually impossible for a union to enforce a penalty clause in a union constitution or bylaw.
The decision is expected to act as a significant precedent against unions being able to enforce discipline through the judicial system. Fines can only be collected voluntarily now.
Ontario Passes Poverty Law
Apparently some Canadian legislatures do think that there are some economic rights worth fighting for.
The Toronto Star reports:
Fighting poverty is now the law in Ontario.
In a unanimous vote yesterday, Queen’s Park passed legislation that commits the province to become a leading jurisdiction in the battle against poverty.
The Poverty Reduction Act, hailed by advocates as “historic,” requires successive governments to draft poverty-fighting strategies with specific goals every five years and to report annually to the legislature on progress.
Yes, that was unanimous.
Corporate Legal Spending Expected to Rebound Sharply
Following a significant decline in corporate expenditures on legal services in 2008 and the first half of 2009, businesses will once again begin increasing their law budgets in the second half of this year according to the results of a study announced today by legal industry research leader BTI Consulting.
The study, titled ‘BTI Mid-Year Spending Update and Outlook,’ covers 16 practices and 18 industries and is based on 370 interviews with corporate counsel at Fortune 1000 companies that average $19.4 million in outside counsel spending. Key findings of the study include:
- Clear signs of renewed legal spending after a sharp decline of 7% since year-end 2008.
- Corporate legal spending at large companies will grow nearly 5% over the next 6 months, bringing overall market growth to only negative 1.4 percent for the year.
- Leading the growth in spending will be the practice areas of regulatory compliance, employment, securities and bankruptcy/corporate restructuring law.
- Year-to-date, the hardest hit core practice areas have been corporate, securities and finance, and intellectual property.
“We have all read the headlines detailing drops in business spending across every category, including legal services. This study presents a big ray of sunshine in what has been a very stormy environment. The reversal of this negative spending trend will help buoy flailing legal markets and offers some hopeful news about business spending in general,” explains Michael B. Rynowecer, President of The BTI Consulting Group.
Rynowecer suggests the increase in spending will not, however, alleviate law firm lay-offs which have been rampant in recent months. “Rather than a wholesale recovery, we are seeing a shift of resources to specific firms and practices that are well-positioned,” Rynowecer warns. “Large companies are sharing this renewed spending with a smaller group of law firms than just 6 months ago. Those firms caught unaware or unprepared for this shift will continue to face significant challenges and not reap the benefits of this increased spending.”
First Law of Debate
First Law of Debate:
Never argue with a fool – people might forget who’s who.
AdviceScene Offers Free Legal Info from Practicing Lawyers
LawIsCool has recently begun a partnership with AdviceScene.com. The site is an online forum that provides resources to both lawyers and members of the lay public.
Founded earlier this year by Nancy Kinney, an entrepreneur with a law background, AdviceScene aims to provide a “fully moderated, social networking community linking lawyers and the public to provide a free and democratic exchange of legal information.”
A key difference between other legal forums and AdviceScene is that AdviceScene provides legal information from actual practicing lawyers; answers don’t come from anonymous sources.
According to Kinney:
“The site offers lawyers a credible method to join the online world of public discussion on legal matters in a manner that conforms to their professional code of ethics.”
The site also assists lawyers that want to contribute legal information online by providing FREE marketing services such as a free lawyer directory, free banner ad, free profile in the monthly newsletter, and soon free website templates, including free search engine optimization (SEO) and hosting.
As an added bonus, AdviceScene Enterprises Inc. donates 5% of gross advertising revenues to pro bono legal services societies.
