I am pleased to announce that new contents have been added to the website.
The new section “Business Law 101” includes the following:
Click here to view the new contents. Let me know what you think.
Traditionally, the common law courts do not enforce contracts that are illegal, penal in nature, or contrary to public policy.
The courts’ disinclination to enforce contracts that are illegal is easy to understand. After all, this country is governed by the rule of law. Contracts that do not observe the laws of the land should be unenforceable. For example, illegal gambling debts are not recoverable in court.
The public policy part is a bit tricky. Since the concept of “public policy” is vague and quite subjective, the courts are generally reluctant to render a contract void or voidable on this ground. Only contracts concerning serious infringement to civil liberties will be held unenforceable on this ground. For example, restriction of the parties’ ability to marry will be rendered unenforceable, since marriage is a fundamental right to a person’s liberty.
Finally, contracts that are penal in nature (including penalty clauses) will not be enforced. This may surprise you. The rationale behind this disinclination to enforce penalty clauses is that the right to penalize individuals belongs to the sovereign, and not to individuals.
Then why are so-called “penalty clauses” still common in commercial contracts?
The answer is two-fold. First, the courts respect the individual’s freedom to engage in contracts and generally will not interfere, even if a party has entered into a lousy contract. Second, the so-called “penalty” clauses are not really penal in nature per se. Rather, they are viewed as liquidated damages for the non-compliance of the terms of the contract.
Even though “penalty” clauses of this kind are generally enforceable, I prefer to avoid referring to them as such to avoid potential confusion.
As a lawyer, I constantly hear people complaining about discrimination and how they want to sue “those bastards.”
Examples include:
“They won’t hire me because I’m fat,”
“They won’t rent me an apartment because I have a criminal record,” and
“They’re trying to kick me out because I’m an addict.”
While I think it is wonderful that people are assertive about their civil rights, I hate to tell them that their complaints are not really considered discrimination under the legislation.
Legally speaking, in Ontario, it is generally deemed discriminatory when someone refuses service or accommodation on one of the following grounds:
Under certain areas of the law, the following grounds are also protected:
Unlike the constitutional protection under the Charter (which may be inferred but offers far more limited grounds), protection under the Ontario Human Rights Code mandates that if the claim is not covered by one of the grounds mentioned above, the action in question cannot be considered discrimination.
Therefore, there are no legal grounds to claim discrimination for differential treatment because of a person’s appearance, such as having tattoos or being fat, or because of a person’s addiction to substances.
On the other hand, if you feel that you have been treated unfairly based on one of the grounds listed above, you probably have a claim for discrimination. Even if the discriminatory behaviour does not directly to one the grounds, as long as it results in unfair treatment in relation to one of the grounds, it may nonetheless be deemed discriminatory.
The Toronto Star reports this story today on “mini scandals” dogging Beijing’s Olympic opening ceremony, including these:
- A child performer lip-synched her song because the actual singer was considered “not pretty enough.”
- The “volunteer” performers at the ceremony were mostly military personnel.
- The “footsteps” fireworks were faked.
- Allegations have arisen that certain Chinese gymnasts are underage.
- Officials used seat-fillers to bolster the attendance at certain events.
Today, I want to talk about the legal consequences in Ontario when a minor child’s interests are harmed.
Typically, children under the age of majority (18 in Ontario) are considered persons with disabilities in legal proceedings. This means that the children cannot act on their own behalf, and must participate through special representatives called “litigation guardians.”
Litigation guardians do not need to be the child’s parent (or other person taking care of the child), although they often are. At times, public bodies such as Office of the Children’s Lawyer and Public Guardian Trustees also act as litigation guardians for litigants under disability.
There are also special rules regarding the limitation period with respect to injuries to minors. Ordinarily, the limitation period is deemed as having begun to run from the time of the injuries happens. If the time runs out before a claim is filed, the plaintiff will not be allowed to recovery damages from the defendant.
In the case of injuries involving a minor’s interest, however, the limitation period does not start until the child has reached the age of majority.
Taking the lip-synching case as an example, if it had happened in Ontario, the original child singer could commence a proceeding through the assistance of a litigation guardian. Alternatively, the child could wait until she turns 18 and then decide whether to go ahead with the claim or not.
It is only the first week of the Olympics, yet several scandals are surfacing already.
First, a Spanish cyclist was kicked out of the games after testing positive for an endurance-enhancing drug. (Click here to read the story.)
Then, several ticket scams hit the media. Fraudsters set up websites selling non-existent or fake tickets to unsuspecting foreigners. According to Canada.com, several bogus websites selling fake Olympic tickets were still in operation as late as Monday, day 4 of the games. It is estimated that hundreds of European, Australian, and North American tourists have fallen prey to these scams. The victims include families of the athletes and even journalists. (Click here for a story from Canada.com)
In light of this story, today I want to talk about civil disputes in the international context. (Last week I wrote about foreigners’ considerations regarding criminal proceedings while in a foreign country. Click here to read the blog.)
When dealing with international civil disputes, the rule of thumb is that the courts most closely related to the dispute should have jurisdiction. This sounds all very easy in theory; however, the application is seldom clear.
Take the ticket scam as an example. There werebuyers from Europe, America, Canada, and Australia. One of the websites listed a contact in London, England, while the office address was in Arizona. The events for which the (fake) tickets were issued are supposedly held in Beijing. Where do you find a court that deals with this mess?
I generally advise the clients to sue in the defendants’ home court, whenever possible. The courts of the defendant’s domicile (e.g., residence) are generally willing to take jurisdiction over the matter. The enforcement of the final judgments will also be easier procedurally.
However, in reality, for disputes on the scale of thousands of dollars, sueing in a foreign court is impractical, if not impossible. Therefore, the plaintiffs generally sue in the courts of their own country, if they choose to sue at all.
In Ontario, the courts will take jurisdiction over the matter if there is a “real and substantial” connection between Ontario and the case. In today’s example, if the buyers are from Ontario, and the purchases were made online while in Ontario, then the plaintiffs may have a case. However, the enforcement of the judgment may become difficult if the defendants do not have any assets in Ontario. There may be difficulties in getting the judgment recognized and enforced in a foreign jurisdiction.
In the end, short of other protections (e.g., credit card protection), the plaintiffs are likely to be left in the cold and their pockets empty.
When in Beijing… be ware of fake tickets!
[Note: the clip below is for news summary purposes only; the copyright belongs to its owner.]
Many residents in Toronto were awoken by a huge explosion in the wee hours of Sunday.
A propane facility situated in a residential-commercial neighbourhood in the north-west part of Toronto burst into flame after a series of explosions. It took the firefighters over 7 hours to contain the fire. One firefighter dies on the line of duty, and one employee of the plant is still missing. (Click here to read related articles on the Toronto Star website.)
It is estimated that 12,000 people were forced to evacuate from their homes. The buildings around the facilities were heavily damaged. Canadian manufacturer Bombardier’s plant situated next to the site was shut down today because of safety concerns.
The residents in the area are, no doubt, angry. Many residents say that there was no public consultation when the plant was set up. Although city officials state in a press release that the plant is in its proper zoning area, the mayor has ordered a top-down zoning by-law review (click here for further information).
There are also concerns about a lack of oversight by the provincial government. Apparently, the facility has never been inspected by the responsible provincial agencies.
To what extend can the government be held liable for civil wrongs? In this case, can the government be sued by area residents?
The answer is not clear-cut.
The courts generally do not impose duties on the government, whether federal, provincial, or municipal, without relevant legislation in place. Therefore, if there is no law mandating the government to do something, the courts are reluctant to impose duties on the government for not doing it. Similarly, the government generally does not have the obligation to provide services, etc., in the absence of relevant laws. An example is the government’s refusal this year to fund early treatments for autistic children.
On the other hand, if there are laws of policy in place mandating a service to the public, the courts will generally take jurisdiction over the matter and hold the government responsible. Once the policy or law is in place, the government will be expected to act diligently as a reasonable person would.
In the case of the Toronto explosion, it is very likely that there are laws in place mandating safety inspections on the part of governmental agencies, if not the provincial government itself. If it turns out that there has never been a safety inspection over the past three years while the propane facility was in operation, the provincial government will likely be held liable to some extent in this tragedy.
My condolences go out to the family of the fallen firefighter.
Today I stumbled upon this legal humor site “Lowering the Bar” (http://www.loweringthebar.net)
This site is written by a lawyer in San Francisco, Kevin Underhill. It is full bits of off-beat stories of the law, the legal profession, then some really interesting, witty stuff.
On the site, I came across this actual order of the Circuit Court of the Greene County, 4th Division, Missouri, that the author managed to find which I must now share with you:
[Note: the following material is being shared under the terms of license by Creative Commons 3.0 - United States. Click here to view the licensing policy]
WHEREAS, on the dates set out below, in the presence of Judge Thomas Mountjoy of the Court of Greene County, Missouri, attorney Carlos Dupree Romious, aka D. Carlos Romious, did do the following stupid things, among others:
On June 16, 2008, during the hearing of pre-trial motions in the jury trial of the above-styled case, Carlos Dupree Romious, aka D. Carlos Romious, did loudly and rudely assert that the court proceeding was a “joke” and a “travesty” . . . [and] did loudly and rudely accuse the Court of “corrupting and stinking up the case” . . . .
On June 17, 2008, during the hearing of pre-trial motions in the jury trial of the above-styled case, Carlos Dupree Romious, aka D. Carlos Romious, did loudly and rudely accuse the Court of “being anything other than impartial, justiciable [sic] and anything but competent” . . . [and took] a copy of a pleading served upon him in open court . . . , wadded it up and threw it on the floor some distance from counsel table and thereafter walked to it and used his shoe to grind it into the floor . . . [and] did indicate to Court his refusal to appear in court [when ordered, saying] “don’t hold your breath” . . . .
On June 18, 2008, during the hearing of pre-trial motions in the jury trial of the above-styled case, Carlos Dupree Romious, aka D. Carlos Romious, did loudly and rudely ask the Court, “are you a pedophile?”
All of which said behavior was willfully and intentionally committed, contemptuous, insolent and directly tended to interrupt the proceedings of the Court and the respect due to its authority . . . Carlos Dupree Romious, aka D. Carlos Romious, is guilty beyond a reasonable doubt of direct criminal contempt.
Tomorrow is the Olympic opening ceremony. I am sure many around the globe are excited about this.
The Chinese government, anxious about “trouble makers,” such as demonstrators supporting various causes, have published a book of comprehensive rules on how spectators should behave. Among the rules are strict restrictions on the display of banners and flags, as well as on “groups of spectators wearing similar or identical outfits.”
These rules have attracted much criticism. However, I am not going to discuss the rules today. I want to talk about the possible legal consequences and remedies if you happen to get into trouble when in Beijing.
Generally speaking, the applications of criminal laws are strictly territorial in nations around the globe. This means that the courts, without express legislation granting otherwise, do not have jurisdiction over crimes committed outside a sovereign territory. (Exceptions in Canada include: war crimes, crimes against humanity, and crimes committed on high seas or in space. Certain nations, such as France, also take jurisdiction based on nationality.)
Hence, if you, a foreign national, get into trouble with Chinese criminal law, the local courts would generally have exclusive jurisdiction over the matter. However, there are certain special rules in public international laws that may provide remedies.
One of the remedies may be that China and the country of your residence (or domicile/nationality) have an extradition treaty in place. If this is the case, a protocol will be followed, and you may be extradited back to your home country to face trial there.
If treaty is in place, certain international law rules may nonetheless apply. For example, persons being detained should be provided with the assistance of counsel and have the right to be tried before an impartial tribunal. The embassy or consulate of the country of the detained person should be notified, and be allowed to provide assistance, legal or otherwise.
Finally, if the international law rules are not being observed and applied, the detained person’s nation may make diplomatic protests, including recalling its ambassador and representatives from the hosting nation. The aggrieved nation may also bring a claim against the hosting nation before the “world court” (International Court of Justice) if the conditions are met.
When in Beijing… enjoy the games and try to stay out of trouble!
A few weeks ago I blogged about auto workers being “laid off” before their first shift, and the hypothetical remedies available to them. (Click here to read the blog.) Among other things, I suggested that the workers may be able to claim damages if they were lured from their old job.
Today the local paper Toronto Metro published an article on how the employers may be found liable for luring new recruits from their old employers. (Click here to read the article.)
The author indicates that where an employee has been induced or recruited away from a secure job, a court may attribute the prior tenure to the recruiting employer. In other words, the new boss may be liable for damages if the new recruit doesn’t work out, and the new recruit was effectively “lured” (that is, beyond the normal degree of persuasion) into the new job.
The author at the same time cautions that not every employee recruited away from another job is entitled to this claim. It must be shown that the employee was “lured,” or induced by the new employer to leave the old job.
I think this is fair. In other areas of law, such as civil litigation, anyone inducing another to commit a civil wrong (e.g. a tort) will be held liable for contributory damages, unless it can be shown that the wrongdoer would have committed the tort regardless of the inducement. In the context of criminal law, a defendant who induced another to commit a crime would generally also be prosecuted to a certain degree.
I think this is a positive development in the area of employment law.
A while ago I blogged about the role of costs in civil litigation. (Click here to view the blog.) Today I want to explore this topic further.
Typically, a successful party is presumed to be entitled to party-to-party costs (e.g. 2/3 of the actual amount being paid) against the unsuccessful party. This generally serves as a deterrent to prevent parties from bringing frivolous proceedings before the courts.
But what about corporations and individuals that do not have assets in Ontario? Does it mean that they can bring whatever they want before the court and get away from the cost consequences? No, it doesn’t.
Under the Rules of Civil Procedure, the responding party is allowed to ask that “security for costs” be posted in advance of the hearing on a motion. This rule applies if one of the following conditions is satisfied:
If the plaintiff is successful in the end, the plaintiff is entitled to have the money back. If the plaintiff is not successful, the security will be used to satisfy any of the costs awarded to the defendant.
@PSWLaw_TO