RULESWATCH

July 27, 2010

A man for all [too many?]seasons?

Filed under: Uncategorized — ruleswatch @ 1:52 pm

The Montreal Gazette reports on Kovalchuk’s 17-year, $102-million contract offer from the New Jersey Devils being taken to arbitration by the NHL – . “…The NHL’s argument is that neither the Devils nor Kovalchuk expect him to play for $550,000 when he’s 44 years old and the additional years are there simply to ease the salary-cap burden on the Devils.”

The piece goes on “The question for the arbitrator to ponder is how long of a contract is too long, and the answer is that the matter is not addressed in the current [collective agreement].

Read more: http://www.montrealgazette.com/sports/Kovalchuk+case+test+rules/3326338/story.html#ixzz0uuF2XptF

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July 25, 2010

American Judicial Confirmation Process: “Political make-believe”

Filed under: Uncategorized — ruleswatch @ 7:24 am

“…. a media lightning rod, distracting public attention away from the real story and onto a piece of political make-believe that is as seasonal and as theatrical as the yearly Nutcracker performance at Rockefeller Center.” –The American federal judicial confirmation system

http://www.slate.com/default.aspx?id=3944&qt=supreme

July 24, 2010

Affidavits 101: Cautions from the Conrad Black Matter

Filed under: Uncategorized — ruleswatch @ 8:37 am

To gain permission to return to Canada, Conrad Black must satisfy the judge that he has given sufficient particulars of his financial position to allow her to conclude that, if she were to allow him to leave the US, he would return for further hearings.

He will evidently have to swear those particulars – and given the potential consequences, no one on the Black side is interested in mistakes. Errors or shortcomings will risk perceptions of misrepresentation. The The National Post underlines drafters’ anxieties: consequences not only risk more reputational damages for their client but could also include the prospect of a return to jail:

In Lord Black’s camp, the dreaded affidavit is viewed as a potential “trap” that U.S. prosecutors can — and will — use to revoke his hard-won bail. And because it’s a sworn legal document, accuracy is paramount, as is full disclosure.

U.S. prosecutors will no doubt closely scrutinize the document to find reason to revoke his bail and send the Montreal-born businessman back to prison, let alone allow him to leave the country. They already tried it once unsuccessfully in 2006, claiming that Lord Black had lied in a sworn affidavit about his finances.

A word to the wise.

Read more: http://www.financialpost.com/news/Conrad+black/3316361/story.html#ixzz0ubMPRwgM

July 23, 2010

Charter Damages (About Time) Vancouver (City) v. Ward, 2010 SCC 27

Filed under: Uncategorized — ruleswatch @ 4:43 pm

In an area that has been far less than certain, a unanimous judgement of the Supreme Court of Canada has now confirmed that damages for breach of an individual’s charter rights can be available. These “..these are not private law damages, but the distinct remedy of constitutional damages”

Under a new “functional approach to damages” constitutional damages will be directed to needs for “compensation, vindication and/or deterrence” assessed in what is supposed to be a practical way.

The section keys, of course, on s. 24(1) of the Charter and the test, for compensation at least will be measured by the tort-style test that “[t]he applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed.” Deterrence will be a key constitutional damages objective as well: “Deterrence seeks to regulate government behaviour, generally, in order to achieve compliance with the Constitution.”

July 22, 2010

Tablets of stone, mediaeval chains

Filed under: Uncategorized — ruleswatch @ 10:55 pm

• The issues herein are challenging, stimulating and provocative. It has been said that the law is ‘a mirror of progressing life and not an unchanging panel of words graven on tablets of stone. The law must be a living science instead of a set of archaic dogmas and doctrines’: per the late Holmes C.J. of the United States.
• “Lord Atkin, in United Australia Ltd. v. Barclays Bank Ltd., [1941] A.C. 1 at 29, [1940] 4 All E.R. 20 (H.L.), told us what to do:
• “‘When these ghosts of the past stand in the path of justice, clanking their mediaeval chains, the proper course for the Judge is to pass through them undeterred.’
• “‘Some care too much for the Law and too little for Justice. They have become technicians spelling out the meaning of words, instead of being, as they should be, men of spirit and vision, leading the people in the way they should go, making the Law fit for the times in which we live.'”

Unusually, Exceptional Circumstances Warrant Stay

Filed under: Uncategorized — ruleswatch @ 8:25 pm

The Nova Scotia Court of Appeal has granted a stay pending appeal where the moving party had failed to satisfy the traditional Metropolitan Stores, tripartite test of 1.arguable issue 2. Irreparable harm to the appellant if the stay is not issued and “co-called” balance of convenience.

In Cape Breton-Victoria Regional School Board v.

Canadian Union of Public Employees, Local 5050

, 2010 NSCA 6, HD was a 44 year old school maintenance worker who entered a sexual relationship with a 15 year old girl who was a student under the same Board where HD work, albeit in another school. When word came out, the Board fired HD. He was ordered reinstated to pay and to work by arbitration. The arbitration was quashed in Supreme Court judicial review. While the Supreme Court had stayed HD’s return to work, his pay and benefits continued.

HD appealed to the Court of Appeal and wanted to go back to work in the meantime. The Board wanted the return to work stayed pending the appeal.

The Board had an arguable case on appeal. Moreover Hamilton J.A. went on to conclude that there was no irreparable harm to the Board should HD be back on site. The Board, it concluded, could explain the return in the context of the judicial proceeding:

[9] I agree with the Union that the Board would not suffer irreparable harm if
the stay was not granted. If the Board ensured the reason for Mr. Delaney’s
reinstatement was available to the public, including the process followed after his
dismissal as outlined in the Union’s argument, the Board’s appeal of the judicial
review order to this Court and my refusal to stay that order, any outrage at Mr.
Delaney’s reinstatement would be directed at the Court, not the Board, and thus
would not irreparably harm the Board’s reputation.

For the same reason the Board’s inconvenience by way of public criticism, the Court decided would be outweighed by countervailing inconvenience to HD (who would earn money he might have to repay should the appeal be successful).

On traditional bases, therefore, the Court could not order the stay.

But it did find that it could find in the little used alternative to the three part test, “exceptional circumstances,” a vehicle to award the stay.

The rational was as follows

[14] I find that the interests of the students, as opposed to the interests of the
parties themselves, are exceptional circumstances here. Arbitrator Ashley satisfied
herself that there was no reason to have reservations about Mr. Delaney working
close to children (para. 77). However, she also clearly found that while his
behaviour did not warrant dismissal, it was repugnant (para. 61) and that had the
sexual relationship commenced less than a year after it did, Mr. Delaney would
likely have been found guilty of a criminal offence (para. 78). Weighing these
findings, the fact that Justice Bourgeois granted a similar stay prior to conducting
her judicial review and the minimal harm to Mr. Delaney of granting the stay, I am
satisfied I should exercise my discretion to grant the requested stay.

Nova Scotia Commercial Arbitration Act ousts Judicial Review (Still)

Filed under: Uncategorized — ruleswatch @ 7:52 pm

Sharecare Homes Inc. v. Cormier, Hfx. No. 308173

The Nova Scotia Supreme Court has confirmed that a consensual arbitration award in an employment termination dispute cannot be attacked by judicial review. The appropriate route was in the limited grounds of appeal available under the Commercial Arbitration Act. The Parties were not bound by statute to proceed with arbitration and the arbitrator that they selected was not appointed pursuant to any legislation.

Citing the Alberta Court of Appeal in Knox v. Conservative Party of Canada at ¶ 14, Smith A.C.J. quoted:

Judicial review is a feature of public law whereby the superior courts under s.96 of
the Constitution Act 1867 engage in surveillance of lower tribunals to ensure that the
fundamentals of legality and jurisdiction are respected by those tribunals.

    The tribunals which are subject to judicial review are, for the most part, those which are
    court-like in their nature, or administer a function for the benefit of the public on
    behalf of a level of government.

Those which are empowered by legislation to supervise and regulate a trade, profession, industry or employment, those which are empowered by legislation to supervise an element of commerce, business, finance,property or legal rights for the benefit of the public generally, or which set standards
for the benefit of the public may also be subject to judicial review. Issues of
contractual or property rights as between individuals or as between individuals and
organizations, are generally addressed through ordinary court processes at common
law, or by statute or through arbitration or alternative dispute resolution as agreed
by the parties.

The Court continued from ¶ 20 – 21 of Knox:

It follows that

    if a tribunal is exercising powers that do not accrue to private
    organizations

, and that are only vested on the tribunal by statute for the benefit of the
public, then it is subject to judicial review. Otherwise it is a private consensual
tribunal and prima facie subject only to private law remedies.

Smith ACJ went on to cited Ripley v. Investment Dealers
Association of Canada et al. (No. 2)
(1991), 108 N.S.R. (2d) 38 (N.S.S.C. A.D.) where
Freeman J.A. stated at ¶ 31:

While prerogative writs do not lie against the panel as a

    domestic tribunal

, its

    proceedings are reviewable for want of jurisdiction or breaches of natural justice

,
which would include bias, as Madam Justice Roscoe found. The remedy, as in
Saskatchewan, would be declaratory or injunctive relief.

Interestingly, the Court in Sharecare raised the matter of its own motion when the original argument had concluded and invited additional submissions.

FORKING OUT: Devils’ Kovalchuk Deal on way to recycle bin

Filed under: Uncategorized — ruleswatch @ 12:13 pm

The Globe and Mail advises:

According to sources with knowledge of the situation, the NHL has been troubled for some time by the practice of front-loading contracts – in which players receive the bulk of their dollars in the early part of their deals – but was never willing to challenge the Players’ Association because there is no specific wording in the collective bargaining agreement that forbade the practice.

Instead, the CBA – under article 26.3 – has a vaguely worded clause that prevents teams from entering into any agreements “intended to defeat or circumvent the provisions of this agreement” – an agreement that includes a hard salary cap that rises and falls based total NHL revenue and contains both a spending ceiling and floor.

http://www.theglobeandmail.com/sports/hockey/why-did-nhl-kill-the-kovalchuk-contract/article1647961/

One labour and employment tribunal for NS?

Filed under: Uncategorized — ruleswatch @ 12:07 pm

The Province of Nova Scotia is considering consolidation of labour and employment tribunals.

http://www.gov.ns.ca/lwd/unionworkplaces/docs/DiscussionPaperLREB.pdf

July 18, 2010

Fleeting Expletives II:Freedom of Expression: Times on Techology and Thomas, Thomas on Technology and Times

Filed under: Uncategorized — ruleswatch @ 6:39 am

More on Freedom of Expression and American Broadcast policy: The New York Times of July 19 editorializes:

But as the Second Circuit noted, the current media landscape “would have been almost unrecognizable in 1978.” Nearly 90 percent of all television viewers subscribe to cable or satellite services, and speech that is regulated on the handful of channels used by broadcasters is unregulated on the hundreds of cable-only stations. Millions of people are watching television programs and videos over the Internet, where speech of all kinds is unregulated. Technology has also made it easier to block children’s access to television. Virtually every set sold in the last decade contains a V-chip that parents can use to restrict access to shows of differing ratings.

It cites to a dissent of Justice Clarence Thomas in an earlier decision (who in turn cites to the Times):

But as the Second Circuit noted, the current media landscape “would have been almost unrecognizable in 1978.” Nearly 90 percent of all television viewers subscribe to cable or satellite services, and speech that is regulated on the handful of channels used by broadcasters is unregulated on the hundreds of cable-only stations. Millions of people are watching television programs and videos over the Internet, where speech of all kinds is unregulated. Technology has also made it easier to block children’s access to television. Virtually every set sold in the last decade contains a V-chip that parents can use to restrict access to shows of differing ratings.

These dramatic changes in factual circumstances might well support a departure from precedent under the prevailing approach to stare decisis….. “FCC v. FOX TELEVISION STATIONS, INC. (No. 07-582) 489 F. 3d 444

 

 

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