RSS FeedHow not to sue Dragons’ Den
Every time I see the Dragons belittle a sweating contestant from their raised TV studio platform that reminds of Olympus I catch a breath. It’s not Jerry Springer but what if one of the scorned pitchers loses it and throws his heavy business idea right at a Dragon’s head? Thankfully, I’ve never seen such a sight, but at least one unlucky show participant did sue the CBC for defamation after a particularly nasty broadcast. His litigation imploded at the summary judgment motion teaching us something about both the defamation law and the inner workings the famous TV show.
In his judgment, Justice Lofchik summarized well what happened between the plaintiff, Mr. Turmel, and the CBC. A Dragons’ Den producer recruited Turmel for his public speaking skills. No business idea was on the table at that time. Turmel signed a bulletproof consent and release. Then his unsuccessful pitch for “a local currency system for Brantford, Ontario” was taped on May 31, 2009. Dragons showed no mercy. Nine months later, the CBC broadcast Mr. Turmel’s pitch in a one-minute version. A week later, he sued the CBC for defamation.
The CBC brought a summary judgment motion. The rule for summary judgment is that “there is no genuine issue requiring a trial with respect to a claim or defence.” Summary judgment is serious because it deprives one or more parties to a lawsuit of a trial. But if there is no doubt about the outcome of a trial, the court should grant summary judgment to save everyone’s time and money.
The first issue at the motion was Mr. Turmel’s failure to notify the CBC of the alleged defamation in writing within six weeks of seeing the broadcast. Ontario’s Libel and Slander Act bars any claim for “libel in a newspaper or in a broadcast” if the plaintiff didn’t do that. Even serving a statement of claim a week after the broadcast didn’t help Mr. Turmel. The purpose of the written notice is to give the alleged defamer a chance to apologize and correct the record. The courts have held that you cannot expect a defendant to have such an opportunity once the litigation took off. If Mr. Turmel’s claim was for defamation, his ignorance of the (rather arcane) law killed his case.
The second issue was Mr. Turmel’s argument that his case was not only for defamation but also for breach of contract. If he was right, the Libel and Slander Act didn’t bar at least some of his claim. He was wrong. The judge held that even though “one might also glean the suggestion of a claim for breach of contract,” Mr. Turmel signed a rock-solid consent and release that was the whole contract between him and the CBC. Mr. Turmel wasn’t a vulnerable party deserving special treatment, and he could have consulted a lawyer when he signed the deal. The agreement was that the CBC could pretty much show or not show anything taped in exchange for giving him a chance to pitch to the Dragons.
So a procedural misstep in the defamation claim and a failure to plead another real cause of action caused Mr. Turmel to lose this summary judgment motion. Consulting a defamation lawyer could certainly have helped him, but who knows, maybe Mr. Turmel will launch a second salvo in his war with the CBC by pleading another cause of action. But which one?
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
On democratic legitimacy of the courts
My last post talked about how judges work with each other’s decisions. Today, I’d like to take a bird’s eye look at the relationship between the judiciary and Parliament. Unelected judges handle laws passed by elected legislatures such as Parliament of Canada or provincial parliaments. How they do it helps understand why it’s ok for judges to be unelected and why we need an independent judiciary.
In Canada, judges do really only two things with laws legislatures pass (also known as acts of legislature or statutes). They apply them or strike them down as unconstitutional.
When judges apply statutes, they interpret them. Legislatures often cannot or do not want to spell out every detail in rules of law they include in statutes. But the only way a law can work is by affecting conduct of specific people in a myriad specific life situations. If somebody believes you violated their legal rights or broke the law, they can sue you or charge you with a crime. You can quickly give in if you know you have nothing going for you. In that case, you will apply the law yourself. You will adjudicate your own case in favour of the other side. You can also dispute the other side’s reading of the law. You will claim that in that particular situation, the law means something different, and you neither broke it nor violated anyone’s rights. Now a judge will have to adjudicate this dispute and impose his or her reading of the law on both sides.
For example, Parliament of Canada defines “invention” as “any new and useful art, process, machine, manufacture or composition of matter” in a statute called Patent Act. Harvard University created a gene making mice susceptible to cancer. A mouse with a gene like that can help identify carcinogens. Harvard University tried to patent the mouse in Canada, failed, and sued the government. Harvard believed that its cancer mouse was an “invention” under Patent Act, but the patent office didn’t. So it was up to a federal court judge to adjudicate this dispute, which basically came down to interpreting the language of the statute.
One reason it was ok for an unelected judge to impose his reading of the law is because the elected legislature implicitly allowed him to do so. Our Parliament chooses broad language for its statutes in full knowledge that some disputes over their interpretation will end up in the courts. The elected Parliament accepts that unelected judges will interpret its acts. If our elected politicians didn’t want the courts to interpret legislative acts, they would use more specific language or create special tribunals to interpret statutes. It happens all the time and is also known as ousting the courts’ jurisdiction. Basically, our elected politicians can shield entire areas of law from the courts, and when they choose not to they essentially delegate some of their democratic mandate and legitimacy to the courts.
Even when the courts do have the power to interpret a democratically created statute, provincial legislatures and Parliament always have an option of overriding the courts’ reading by clarifying or changing the statute. The term “dialogue” is used to describe this relationship between the courts and the legislators. When the courts ultimately decided that the cancer mouse was not an invention, they did their best, very democratically, to divine the will and intention of Parliament. They did not try to make their own ethical or political judgment, and they knew perfectly well that if they got it wrong, Parliament can always correct them by clarifying the Patent Act. Parliament didn’t.
So one huge responsibility of the courts—interpreting legislative will—is far more democratic and legitimate than some think. Of course, the courts’ other responsibility—striking down laws as unconstitutional—is a lot more controversial, but this topic is better left for its own blog post.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
What can judges really do?
Judges are powerful people. Sometimes, misconceptions about their power lead to calls for an elected judiciary or some other form of outside intervention in our courts. These are all bad ideas. Our judiciary must be independent from all potential litigants (including the state). It is also sufficiently self-regulated yet flexible.
The most important principle of our judicial system is that it is passive. It never goes out and forces anyone to do anything unless someone asks it to resolve a dispute. An aggrieved person or organization (or the state) must bring a valid cause of grievance to the courts’ attention. The courts will generally give the party blamed for the grievance a chance to dispute the accusation. After reviewing the dispute, the courts will resolve it by granting or denying a requested remedy to whoever brought the dispute to the courts. Courts’ decisions are always about a specific dispute before them, and you must be somehow connected to this dispute for the courts to be able to force you to do anything. (There are important exceptions such as references by governments to provincial appellate courts or to the Supreme Court of Canada.)
For example, if someone wants to stop a neighbour from smoking because it harms their child, they would go to the Superior Court. A judge will hear from both sides and make a decision in this particular dispute. But that judge cannot outlaw smoking near children for everyone everywhere.
If another judge refuses to enforce an anti-prostitution law because she finds it unconstitutional, her decision applies only to the specific person who was charged with a criminal offence under that law and who alleged to this judge that the law was unconstitutional. The judge cannot force the police from arresting the next john.
A judge’s decision can be binding only on those who have something to do with the specific dispute before that judge. If a judge finds a law under which Mr. X was arrested unconstitutional and as a remedy orders whoever has custody of Mr. X to release him, he must be released as contempt of court is a criminal offence in itself. But if Mr. X is arrested again for doing the same thing later on, a different judge doesn’t have to order the police to release him. The original judge’s decision is not binding on a fellow judge. Even the original judge can strangely change his or her mind and deem the law constitutional.
But judges respect each other’s decisions. This respect is also called deference, and it comes in different sizes. Fellow Superior Court judges often find each other’s decisions persuasive but they defer to each other much less than they do to judges of the Court of Appeal. A losing party can ask an appellate court to review the decision of the judge who first heard the case. An appellate decision in that case will enjoy greater deference from Superior Court judges when a similar case come before them. They will simply know that if they don’t defer, their decision will probably be overturned on appeal because a panel of appellate judges will probably decide similarly to the previous panel if the facts of the case are similar.
In criminal cases, this motivates the police to respect appellate court’s decisions in similar situations because the police would be wasting its resources by arresting people the courts will likely release. On the flip side, a crack-down decision even by a Superior Court’s judge will probably encourage the police to arrest more people in similar cases, even if to force the issue to an appellate court.
But one panel of the Court of Appeal cannot really force another panel to do anything. That creates a certain intrigue in our judiciary. In theory, even an appellate court’s decisions are not binding on lower courts because the next appellate panel can agree with a lower court’s judge going against the previous appellate panel. Rinse and repeat for the Supreme Court of Canada. Basically, the idea is that judges have a great amount of respect for each others’ decisions, and the respect grows exponentially with the level of the court making the decision, but no judge can really force another judge to do anything.
Yet this is a very simple, literal view of the judges’ power over each other. In reality, lower court judges pay so much deference to appellate court judges that higher court decisions are effectively binding on lower courts. Also, a more accurate way to see the hierarchy of judges is not through hard power but through learning, evolution, and respect. It is a soft power structure that binds lower courts judges rather predictably but still leaves room for revolutionary decisions defying existing norms.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Constructive dismissal
Recently, I consulted a client who was in a conflict with a few co-workers. Let’s call him Jack. My client told me they did not like him. Jack received emails accusing him of poor communication skills and mistakes in the performance of his work duties. Jack convinced me that the accusations were groundless. He believed his co-workers wanted him to quit so they could help their friend take his place. He thought it was bullying and wanted it to stop. Jack’s bosses didn’t help him much. But none of the bosses took part in or condoned the criticisms. One of them did ask Jack’s co-workers to tone it down, and the tension went down a little for a while. Still, Jack felt uncomfortable at work.
Jack talked to me because he clearly wanted one of two things: a complete end to what he thought was bullying or termination of his employment with a fair severance package. He was willing to leave if his employer paid him enough.
Usually, if you quit your job, you cannot expect any good-bye package. Employers must pay terminated employees if they are dismissed not if they leave voluntarily. The amount depends on such things as how long you worked there, how much you made, what your job was, how you were originally hired, etc. If the employer fires you for a good reason, it doesn’t have to pay you anything. Good reasons can include lying, stealing, punching someone in the face, or failing to stop doing something wrong but less serious after several warnings. This is called dismissal for cause. If there is no “cause” for dismissal, you must get either an early notice of dismissal or whatever you would have earned during the period after such notice if they want to let you go right away.
But what if you did nothing wrong, but your job becomes unbearable? Sometimes in cases like that, you can quit and still expect a payment as if the employer terminated you without cause. When your employer changes a fundamental term of your job without your agreement, the law recognizes your right to quit and keep your pay for a certain while (or get it all at once). This is called constructive dismissal. The basic rule is a fundamental term of your job must be at stake and you must not agree to its change. Cutting your pay, demoting, taking all responsibility from you, cutting off your access to basic tools you need to do your job, demanding that you work completely new hours, serious harassment—all of those things may be constructive dismissal.
I told Jack that he probably didn’t yet have a case for constructive dismissal. A couple of sarcastic emails belittling his communication skills and a few times when he though he was intentionally set up for failure did not justify the risk of litigation. If Jack accused his employer of constructive dismissal and sued, he would definitely lose his job, but his success in getting a good package through the courts was far from guaranteed. The only assured payout was my legal fees. I recommended to wait and gather more evidence, and yes, to bear up. Law is a powerful, blunt, and expensive tool, and often it expects some degree of stoicism. That’s why it’s important to consult a lawyer before taking any drastic steps at work. We may actually prevent useless litigation.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
My Fellow American
Check out the website, My Fellow American.
In Memorandum: Wendy Babcock (1979-2011)
Law students like to think the have it rough. But some of us have it rougher than others, especially those of us that took the less traveled road to law school.
This evening The Star announced that Wendy Babcock was found dead yesterday in her home. Wendy would have entered her third year of law school at Osgoode Hall this Fall. She gained notoriety given her background as a homeless teenage prostitute (she would say “sex worker”) before entering law school.
Third-year students expressed frustration today after Toronto area articling position offers closed when many were still waiting for a job. Wendy recently asked me whether she should consider changing her name for law firm applications, because she was apprehensive about what law firms would think about her background. The Eye Weekly once did a piece on her entitled, “All that she can’t leave behind,” and I responded that her experiences were what made her special.
Knowing the advocacy work that I’ve been involved in she also questioned my career path, asking me why I wasn’t practicing human rights law.
Wendy will live on in memories, and through the social media footprint she’s left behind (her “memoranda”). Coincidentally, I just viewed this TED video earlier today:
Here are some of the sites you can find out more about Wendy:
Wendy Babcock - a site created post-mortem by her friends
And finally, here is her last note posted on Facebook, giving us some insight into a controversial subject currently being deliberated by the Supreme Court of Canada in Bedford v. Canada:
