Flocke and her new friend

Flocke and the Russian cub have been introduced and seem to be getting along well -- they have played together and you can see a video of them at:

http://blog.br-online.de/eisbaer/index.php?/archives/452-Bilderfutter-zum-Feierabend!.html#extended

Above is a photograph of the two together.

Cellphone firms ordered to fix 911 system to save lives

I did a trial with Justice von Finckenstein, when he was on the Federal Court -- although I was unsuccessful I was impressed with how sensible and careful he was. With more folks using cellphones as their day to day phone this change is absolutely necessary.

Cellphone firms ordered to fix 911 system to save lives
Regulator imposes deadline for upgrade that will allow dispatchers to locate callers

From Wednesday's Globe and Mail


Canada's telecom regulator will force the cellphone industry to upgrade the country's 911 system, which has fallen behind other parts of the world and may be contributing to deaths involving wireless calls for help.

Government officials said they would impose a February, 2010, deadline to install the necessary equipment to give 911 dispatchers the ability to locate cellular calls in an emergency.

The plan has not been disclosed to much of the telecom sector. It comes after a recent Globe and Mail investigation found there were several cases of fatal or near-fatal incidents last year alone where 911 dispatchers could not determine the location of the caller.

The technology has been used in the United States since at least 2005, and in some cases the equipment needed is made in Canada. The Globe investigation found that a key impediment to updating the 911 system was a reluctance by regulators to impose a deadline, as the United States did, to end years of industry infighting on the issue.

“I thought that this would put the matter to rest,” Paul Godin, director of the Canadian Radio-television and Telecommunications Commission, said Tuesday. “We are concerned about the safety and security of Canadians ... that's sort of our guiding light if you wish.”

The decision came Tuesday from CRTC chairman Konrad von Finckenstein, Mr. Godin said. Further details of the plan will be made public next month.

Attitude

John is the kind of guy you love to hate. He is always in a good mood and always has something positive to say. When someone would ask him how he was doing, he would reply, 'If I were any better, I would be twins!'

He was a natural motivator.

If an employee was having a bad day, John was there telling the employee how to look on the positive side of the situation.

Seeing this style really made me curious, so one day I went up and asked him, 'I don't get it!'

'You can't be a positive person all of the time. How do you do it?'

He replied, 'Each morning I wake up and say to myself, you have two choices today. You can choose to be in a good mood or...you can choose to be in a bad mood.

I choose to be in a good mood.'

Each time something bad happens, I can choose to be a victim or...I can choose to learn from it. I choose to learn from it.

Every time someone comes to me complaining, I can choose to accept their complaining or...I can point out the positive side of life. I choose the positive side of life.

'Yeah, right, it's not that easy,' I protested.

'Yes, it is,' he said. 'Life is all about choices. When you cut away all the junk, every situation is a choice. You choose how you react to situations.. You choose how people affect your mood.

You choose to be in a good mood or bad mood. The bottom line: It's your choice how you live your life.'

I reflected on what he said. Soon hereafter, I left the Tower Industry to start my own business. We lost touch, but I often thought about him when I made a choice about life instead of reacting to it.

Several years later, I heard that he was involved in a serious accident, falling some 60 feet from a communications tower.

After 18 hours of surgery and weeks of intensive care, he was released from the hospital with rods placed in his back.

I saw him about six months after the accident.

When I asked him how he was, he replied, 'If I were any better, I'd be twins...Wanna see my scars?'

I declined to see his wounds, but I did ask him what had gone through his mind as the accident took place.

'The first thing that went through my mind was the well-being of my soon-to-be born daughter,' he replied. 'Then, as I lay on the ground, I remembered that I had two choices: I could choose to live or...I could choose to die. I chose to live..'

'Weren't you scared? Did you lose consciousness?' I asked.

He continued, '...the paramedics were great.

They kept telling me I was going to be fine. But when they wheeled me into the ER and I saw the expressions on the faces of the doctors and nurses, I got really scared. In their eyes, I read 'he's a dead man'. I knew I needed to take action.'

'What did you do?' I asked.

'Well, there was a big burly nurse shouting questions at me,' said John. 'She asked if I was allergic to anything 'Yes, I replied.' The doctors and nurses stopped working as they waited for my reply. I took a deep breath and yelled, 'Gravity''

Over their laughter, I told them, 'I am choosing to live. Operate on me as if I am alive, not dead.'

He lived, thanks to the skill of his doctors, but also because of his amazing attitude...I learned from him that every day we have the choice to live fully.

Attitude, after all, is everything.

'Therefore do not worry about tomorrow, for tomorrow will worry about itself. Each day has enough trouble of its own.' Matthew 6:34.

After all today is the tomorrow you worried about yesterday.

Gaza -- More views

Interesting piece from Asia Times Online -- the opening paragraphs show Bennett's political position but the article goes on to deal with the practical issues related to the fighting.


Ground realities in Gaza
By Richard M Bennett

Israel's patience with Hamas finally snapped on December 27, 2008. The government of Prime Minister Ehud Olmert in Tel Aviv finally took the momentous decision that it was no longer possible politically, militarily or morally to endure the constant barrage of Hamas missiles on its citizens in the south of Israel.

This closely followed the deliberate refusal by Hamas on December 19 to renew the already shaky ceasefire of the previous six months.

International condemnation of Israel's actions swiftly followed. However to many neutral observers and indeed to the majority of Israelis, much of this wave of criticism appears to be both cynical and unjust.

For many of those states and individuals at the forefront of the protests have displayed a noticeable lack of concern over Hamas' terrorist attacks.

Similarly those same critics have shown a spectacular indifference to the plight of nearly a million Israeli civilians forced to live under the constant threat of Hamas missiles and suicide bombers.

Hamas had simply pushed its luck too far by continuing to deliberately target soft Israeli civilian targets.

Full story here:

http://www.atimes.com/atimes/Middle_East/KA08Ak02.html

Judge to decide if father of girls who froze will face sentencing circle

It's hard to say that a sentencing circle is a bad idea if it helps to heal the community. Remember the circle does not bind the Court's sentence power -- the circle can recommend one thing and the judge do another. On the other hand, this is a matter that needs to have a punishment fitting the offender and the crime; two children died.

ROSE VALLEY, Sask. - A Saskatchewan father whose two young daughters froze to death is about to learn if he'll face an aboriginal sentencing circle.

Provincial court Judge Barry Morgan will rule Wednesday whether Christopher Pauchay should face a sentencing circle after pleading guilty to criminal negligence causing death. It was nearly a year ago that Pauchay stumbled drunk from his home and lost the two little girls in a blizzard.

Defence lawyer Ron Piche argued for a sentencing circle, saying Pauchay has accepted responsibility for his actions and has a lot of support on his home reserve.

The Crown has said a sentencing circle is not appropriate and that the offence calls for a sentence of 2 1/2 to five years in prison.

A sentencing circle allows the aboriginal community to help determine an appropriate sentence for an offender. However, a judge is still obliged to impose a sentence and can ignore the recommendations.

Canadian morning -- Tim's in the elevator

Three years of street crime

This article puts the Madoff fraud into some context -- in effect, three years worth of street crime! Of course, how many huge frauds go undetected? If the economy had been growing still, Madoff would still be on his game... .

Just how big is a $50 billion fraud?

The amount of wealth that vanished under Bernard Madoff is roughly equal to that lost to burglars and thieves in the U.S. over 3 years.

By Scott Burns
January 05, 2009
Media accounts immediately labelled the disappearance of $50 billion, masterminded by Bernard Madoff, as the largest fraud in history.

...
Three years' worth of crime

One way to measure the extent of the damage is to compare the $50 billion to measures of loss in the FBI's Uniform Crime Reports. In 2007 there were 9.8 million crimes against property in the United States. This included about 2.2 million burglaries, 6.6 million larceny-thefts and 1.1 million car thefts.

I think you'll agree that 9.8 million crimes represent a veritable army of miscreants. In spite of that, Americans' total losses to property crimes in 2007 were a mere $17.6 billion. To be sure, it didn't feel "mere" if to anyone who suffered a burglary. The average loss was $1,991. Nor was it "mere" to be one of the 6.6 million people who suffered a larceny-theft. In those, the average loss was $886.

But when you add all the losses in 9.8 million common property crimes, it's just a fraction of the estimated $50 billion loss authorities blame on Madoff.

Perhaps 2007 was an "off" year for theft?

Well, there was a slight decline in the number of crimes, but not in the amount lost. In 2006, the report shows nearly 10 million crimes against property and losses of an additional $17.6 billion. Similarly, the 2005 report shows nearly 10.2 million crimes against property and a total loss of $16.5 billion.

Add the three years and you get $51.7 billion. Using that value, Madoff has caused losses basically equal to all the losses caused by all the conventional thieves in America for nearly three full years.

Full story here: http://finance.sympatico.msn.ca/Investing/ScottBurns/Article.aspx?cp-documentid=16568160

Snowy day in Canada

Equity in family law -- unmarried couples do not have rights in Equity similar to those of married couples

Today’s decision in Belvedere v. Brittain Estate, 2009 ONCA 1 considers in detail the use of Equity in the context of cohabiting but unmarried couples. A fair summary would be that the case strongly limits the use of trusts in family law except where there is a very clear case of uncompensated contributions to property. Put otherwise, a court is not entitled to impose a “marriage like” settlement on an unmarried couple by use of Equity. The case is of great importance in the context of the end of an unmarried couple’s relationship and is worthy of close review in that context.

Here the couple’s relationship ended with the unexpected death of one of the two. Prior to death the deceased had expressed an intention to settle certain assets with his partner but by death had not done so. There was paperwork prepared for the settlement but death intervened. Despite this, Equity was not entitled to intervene and complete the settlement as intended.

The Court writes:

[50] First, a constructive trust is available as a remedy for unjust enrichment only where monetary damages are inadequate: see Peter v. Beblow at p. 997. In this case, had unjust enrichment been established, monetary damages would clearly have been an adequate remedy. At the time of his death, Mr. Brittain’s estate was valued at approximately $6 million. There were more than adequate funds to compensate Ms. Belvedere for her claim of unjust enrichment.

[51] Second, in addition to the above requirement, there must be a link between the contribution that founds the action and the property in which the constructive trust is claimed: Peter v. Beblow at p. 988; see also Sorochan at p. 50. In this case, Ms. Belvedere did not contribute, directly or indirectly, to Mr. Brittain’s RRSPs, and whatever potential interest she might arguably have had would, in any event, be limited to Mr. Brittain’s last two payments of $13,500 per year during the time of the cohabitation.

…

[57] Where damages are the remedy for unjust enrichment, the trial judge ought to proceed on a “value received” approach: see Bell v. Bailey, (2001), 203 D.L.R. (4th) 589 (Ont. C.A.) at para. 38. In this case, the services Ms. Belvedere provided that arguably merit compensation were domestic labour, Air Canada travel and health benefits, and use of her family’s Florida condominium.

Oshawa Courthouse

A typical stripmall courthouse.

Ezra Pound

The worst mistake I made was that stupid, suburban prejudice of anti-Semitism.
James Morton

Gaza news

As is often the case, Al Jazeera is a good source of news without significant spin (yes, their editorials spin like a top but I am talking about the news stories). The most recent reports out of Gaza are clear and current and present facts, not opinion playing at fact.


Fighting rages in Gaza

Heavy fighting has taken place in and around Gaza City with Palestinian fighters putting up a stiff resistance to advancing Israeli ground forces.

Large explosions and intense gun battles were reported from the Shejaiya neighbourhood late on Monday. Flares lit up the skies as Israeli helicopter gunships and fighter jets flew low over the the city.

A spokesman of the Al-Quds Brigades, the military wing of the Islamic Jihad movement, told Al Jazeera that Israeli tanks were trying to move into Gaza City.

He said that the group's fighters had destroyed an Israeli armoured personnel carrier in the clashes.

Al Jazeera's Ayman Mohyeldin, reporting from the Gaza Strip, said that much of the fighting took place around a high area on the outskirts of the city.

"The strategic overlook essentially gives an overview of the entire northern part of Gaza .. that's why it probably has some significance to the Israeli military," he said.

"Because of its height and elevation it has probably also been used to fire rockets into Israel."

Fierce fighting between Israeli troops and Palestinian fighters was also reported in eastern Jabliya in the northern Gaza Strip.

Full story here:

http://english.aljazeera.net/news/middleeast/2009/01/200915174731392162.html

For peace is not sought in order to the kindling of war, but war is waged in order that peace may be obtained

The Just War
ST. THOMAS AQUINAS

I reply that it must be said that, in order that a war may be just, three things are necessary.

In the first place, the authority of the prince, by whose order the war is undertaken; for it does not belong to a private individual to make war, because, in order to obtain justice, he can have recourse to the judgment of his superior. Neither does it belong to a private individual to summon a multitude of people together as must be done to engage in war. But, since the care of the State is confided to Princes, it is to them that it belongs to defend the city, the kingdom or province which is subject to their authority. Just as it is permissible for them to defend these, by the material sword, against those who trouble them from within, by punishing the evil-doers according to the word of the Apostle: "The prince beareth not the sword in vain for he is the minister of God to execute His vengeance against him who doeth evil" (Romans xiii: 4), so, in like manner, it is to them that it belongs to bear the sword in combats for the defence of the State against external enemies. Also, the Psalmist says to princes: "Snatch the poor and deliver the needy out of the hands of the sinner" (Psalm lxxxi: 4). This is what makes St. Augustine say (Contra Faustum, XXII, 75): "The natural order, which would have peace amongst men, requires that the decision and power to declare war should belong to princes."

In the second place, there must be a just cause; that is to say, those attacked must have, by a fault, deserved to be attacked. This is what makes St. Augustine say in Book VI, Question 16, of Questions on Joshua: "Just wars are usually defined as those which avenge injuries, when the nation or city against which warlike action is to be directed has neglected either to punish wrongs committed by its own citizens or to restore what has been unjustly taken by it. Further, that kind of war is undoubtedly just which God Himself ordains."

In the third place, it is necessary that the intention of those who fight should be right; that is to say, that they propose to themselves a good to be effected or an evil to be avoided. This is what made St. Augustine say in the book De Verbis Domini: "With the true servants of God wars themselves are pacific, not being undertaken through cupidity or cruelty, but through the love of peace, with the object of repressing the wicked and encouraging the good."

Consequently, it may happen that, although the war has been declared by the legitimate authority and for a just cause it may nevertheless be rendered illicit by the perversity of the intention of him who makes it. "For," says St. Augustine (Contra Faustum, I, XXII, Chap. 74), "what is blamed in war? Is it the death of those who must die sooner or later, but who give up their lives to bring peace by overcoming guilty men? To blame this is the cry of cowards, not of religious people. The desire for harming, the cruelty of avenging, an unruly and implacable animosity, the rage of rebellion, the lust of domination and the like-these are the things which are to be blamed in war."

To the second argument (viz. that war is a sin, as being "contrary to a divine precept") it must be replied that these precepts, as St. Augustine says (De Serm. Domini in monte, I, 34), ought always to be observed in relation to the disposition of the soul; that is to say, that man ought always to be ready, if necessary, not to resist or not to defend himself. But sometimes we must act otherwise for the common good, and even for the good of those against whom we fight. This it is that causes St. Augustine to say, in the Fifth Epistle Ad Marcellinum: "There are many things that must be done against the will of those whom one ought to correct with a beneficent severity."

To the third argument the reply is, that those who wage wars justly have peace as the object of their intention, and so they are not opposed to peace, but only to that evil peace which the Lord did not come on earth to bring (St. Matthew x: 34). Hence Augustine says (Ep. ad Bonifacium, CLXXXIX) : "For peace is not sought in order to the kindling of war, but war is waged in order that peace may be obtained. Therefore, even in waging war, cherish the spirit of the peacemaker, that, by conquering those whom you attack, you may lead them back to the advantages of peace . . . ."

To the fourth argument the reply is that manly exercises in warlike feats of arms are not all forbidden but those which are inordinate and perilous, and end in slaying or plundering. In olden times warlike exercises presented no such danger and hence they were called exercises of arms or bloodless wars.

St. Thomas Aquinas: "The Just War", The Summa Theologica
James Morton

Interesting blog on the Baha'i Faith in Egypt

The difficulties of Coptic Christians in Egypt are well known. What I did not realize was that there was a significant Baha'i community in Egypt or that they faced ongoing difficulties as well.

Whether you accept that Bahá'u'lláh was in fact divinely sent the religion is amiable and friendly to all peoples of all backgrounds.

This blog is worth a look:

http://www.bahai-egypt.org/
James Morton

Something nice for a change

A picture of Flocke's new friend, his brother and his mother, from this summer in Moscow...

Obama stays silent

Politics is the skilled use of blunt objects.

Lester B. Pearson (1897 - 1972)


Politics, diplomacy behind Obama’s Gaza silence

Reuters

WASHINGTON -- Even as Israelis and Palestinians plunged deeper into conflict, U.S. President-elect Barack Obama remained silent, refusing to budge from his one-president-at-a-time mantra.

Obama takes office Jan. 20 but has not commented on the Middle East crisis since Israel launched attacks on Gaza nine days ago. His advisers insist that only President George W. Bush can speak for America until then.

...

While most prominent U.S. politicians have backed Israel, critics have noted that Obama joined Bush in condemning the killing of civilians in attacks in November in Mumbai, India. They would have liked him to say something about the fate of Palestinian civilians caught in the fighting.

The president-elect also has commented on the global economic crisis and his plans to try to pull the U.S. economy out of recession.

Asked about the apparent contradiction, an Obama transition aide who asked not to be named said Sunday: "President Bush is our nation's president until Jan. 20, and he is responsible for our nation's diplomacy with the world.

...

He also knows any statement is fraught with traps.

"If I were Obama, I wouldn't want to talk about it either. Frankly, it's a lot more comfortable to let this one hang on the president," said Edward Walker Jr., who served as U.S. ambassador to Israel from 1997 to 1999.

...

Pro-Israeli comments by Obama risk upsetting the Arab world even before he takes office. Comments that seem critical of Israel would anger its American supporters.

Morton Klein, president of the pro-Israel Zionist Organization of America, noted that Obama spoke out on Mumbai.

"And he's acting almost as if he's president when it comes to the economy, right? He's not screaming ‘there's only one president' when he's talking about the economic stimulus package," Klein said.

Full story:

http://www.reuters.com/article/email/idUSTRE4BT36O20081230?pageNumber=2&virtualBrandChannel=10112&sp=true

Pennies

This may be a trifle (well, it is a trifle) but I have noticed some restaurants, usually the type that specialize in making their customers feel inferior, keep the pennies (and nickels and dimes and quarters) and round up to the nearest dollar.

They never seem to round down.

And that annoys me.

Asking for the change seems like begging, but taking the difference off the tip seems wrong also.

Granted this isn't as important as most issues but it does frustrate me!

Slow but certain

Today's Globe has an interesting piece on the Leader's quiet strategy. The piece is (mildly) critical but misses what is a key point -- we are in a marathon and not a sprint.

Regardless of what happens with the budget at the end of the month we are in for a long battle. And long battles are best not rushed into blindly.

There is rebuilding to be done and that will take months, perhaps years. Even if we were to become the Government in February -- which seems unlikely -- the rebuilding would need to continue.

And so the Leader is right to take the time to prepare and move on with deliberation and not haste.

The Liberal leader is a man of magnitude. So where is he?

LAWRENCE MARTIN

January 5, 2009
Globe and Mail

Michael Ignatieff has been completing a book over the holidays, the last chapter in a family saga. That's fine and well, but there are Liberals who wish he'd chosen another time - a better moment than the immediate aftermath of becoming party leader.

With the departure of Stéphane Dion, it was thought there would be a rush of momentum for the Grits, heady sensations of relief and revival. With the eloquent Mr. Ignatieff as the new regent, hopes were further heightened.

By comparison to his predecessor, he is a man of magnitude. But where is the new dynamism? And where is he? At a volatile political juncture when the moment needs be seized, Iggy's off to a quiet and rather unremarkable beginning.

It's not so much his own doing. Circumstances have not been kind. There was no leadership race. That meant no high-profile campaign, no media-saturated convention, no hallmark speech. His overnight enthronement served the good purpose of quickly terminating the Dion stewardship. But coronations cannot be said to be democratically edifying. Rather than bolstering credibility, they can bleach it.

Iggy's investiture had the added disadvantage of coming just before the Christmas break. It meant that, with all the holiday distractions, he couldn't showcase himself. Instead, Prime Minister Stephen Harper has maintained the higher profile with his year-end interviews and hockey tournament photo-ops.

James Morton

Another snowy day ...

Gaza and Lebanon

I don't agree with the spin on this BBC report but it does illustrate well the very significant differences between Gaza today and Lebanon in 2006.

" In the Israeli border town of Sderot more people were on the streets during the day than a few days ago. They were feeling less tense now that Israel had sent soldiers in. Israel's justification for what it is doing is the need to protect its citizens in Sderot and the other towns within rocket range of the Gaza Strip."

<http://news.bbc.co.uk/1/hi/world/middle_east/7810888.stm>
James Morton

Ok, so it's not a buffer zone

Israeli forces bisect Gaza



IBRAHIM BARZAK AND MATTI FRIEDMAN



Globe-Associated Press



January 4, 2009 at 8:08 AM EST



GAZA CITY, Gaza Strip — Israeli ground troops and tanks cut swaths through the Gaza Strip early Sunday, bisecting the coastal territory and surrounding its biggest city as the new phase of a devastating offensive against Hamas gained momentum.



Thousands of soldiers in three brigade-size formations pushed into Gaza after nightfall Saturday, beginning a long-awaited ground offensive after a week of intense aerial bombardment. Black smoke billowed over Gaza City at first light and bursts of machine gun fire rang out.



TV footage showed Israeli troops with night-vision goggles and camouflage face paint marching in single file. Artillery barrages preceded their advance, and they moved through fields and orchards following bomb-sniffing dogs ensuring their routes had not been booby-trapped.



The military said troops killed or wounded dozens of militant fighters, but Palestinian medical teams in Gaza, unable to move because of the fighting, could not provide accurate casualty figures.

Perhaps a buffer zone only?

From a CP report:

An Israeli military spokeswoman confirmed the incursion and said the aim was to seize areas from where Hamas was launching rocket attacks on southern Israel.
 

"The objective is to destroy the Hamas terror infrastructure in the area of operations," Major Avital Leibovitch said.


James Morton

Israel and Gaza

Radio reports say Israeli forces have entered Gaza. What is not clear is whether there is an intention to seize a buffer zone (presumably to halt or limit rocket attacks) or if the plan is broader.
James Morton

Gaza monitors?

I noticed this small part of a much longer CBC story:

In Washington, President George W. Bush said the United States was working to support a meaningful ceasefire but an end to the attacks would require international monitoring of Hamas and arms smuggling into Gaza.

In his weekly radio address, Bush said the rocket attacks by the Palestinian militant group were an "act of terror" that showed Hamas was more interested in violence that governing Gaza.

"I urge all parties to pressure Hamas to turn away from terror and to support legitimate Palestinian leaders working for peace," Bush said.

"Another one-way ceasefire that leads to rocket attacks on Israel is not acceptable."

Is this just talk or does Bush have any information? Who would be the monitors? Unlike traditional peacekeeping there would be a serious element of peacemaking here -- and grave danger to the peacekeepers.

Flocke thinks on her guest

Apparently the visits at the howdy-gate have been working well -- but the Moscow bear is much bigger than Flocke so there will have to be great care taken before they can be allowed to play together. (Note, both cubs are far too young for breeding and the introduction is intended to socialize Flocke rather than anything else)

A reader replies regarding crime

I don't normally put replies here but these two, I gather from the saem person, are worth flagging. They relate to the post on crime rates dropping:

Reply 1
When considering the youth crime rate you have to account for the fact that zero tolerance policies are having a real impact. I am a lawyer who specializes in youth crime. We were just talking about how so many youths are charged for things today that they were never charged with before. I am referring to the school yard fights and muggings that never seemed to attract legal sanctions when I was a kid.


Reply 2
Your point about broken homes is also relevant. I would say that the lack of social service agencies and foster homes along with the increase in mental health problems is also playing a role.

Oppression -- The Supreme Court clarifies in the BCE decision

The Supreme Court has now released the extremely important corporate law decision in BCE Inc. v. 1976 Debentureholders, 2008 SCC 69 (CanLII)

The case considers the test for oppression under the various corporate statutes across Canada and comes to a conclusion that oppression is an unfair disregard of a reasonably held expectation by a corporate stakeholder. While this may seem obvious, the test is narrowly limited and means oppression will not be found except in clear cases.

The oppression remedy focuses on harm to the legal and equitable interests of a wide range of stakeholders affected by oppressive acts of a corporation or its directors. This remedy gives a court a broad jurisdiction to enforce not just what is legal but what is fair. Oppression is also fact specific: what is just and equitable is judged by the reasonable expectations of the stakeholders in the context and in regard to the relationships at play.

In assessing a claim of oppression, a court must answer two questions: (1) Does the evidence support the reasonable expectation asserted by the claimant? and (2) Does the evidence establish that the reasonable expectation was violated by conduct falling within the terms "oppression", "unfair prejudice" or "unfair disregard" of a relevant interest? For the first question, useful factors from the case law in determining whether a reasonable expectation exists include: general commercial practice; the nature of the corporation; the relationship between the parties; past practice; steps the claimant could have taken to protect itself; representations and agreements; and the fair resolution of conflicts between corporate stakeholders. For the second question, a claimant must show that the failure to meet the reasonable expectation involved unfair conduct and prejudicial consequences.

Where conflicting interests arise, it falls to the directors of the corporation to resolve them in accordance with their fiduciary duty to act in the best interests of the corporation. The cases on oppression, taken as a whole, confirm that this duty comprehends a duty to treat individual stakeholders affected by corporate actions equitably and fairly. There are no absolute rules and no principle that one set of interests should prevail over another. In each case, the question is whether, in all the circumstances, the directors acted in the best interests of the corporation, having regard to all relevant considerations, including - but not confined to - the need to treat affected stakeholders in a fair manner, commensurate with the corporation's duties as a responsible corporate citizen. Where it is impossible to please all stakeholders, it will be irrelevant that the directors rejected alternative transactions that were no more beneficial than the chosen one.

The Court, in a key passage, holds:

[68] In summary, the foregoing discussion suggests conducting two related inquiries in a claim for oppression: (1) Does the evidence support the reasonable expectation asserted by the claimant? and (2) Does the evidence establish that the reasonable expectation was violated by conduct falling within the terms "oppression", "unfair prejudice" or "unfair disregard" of a relevant interest?

Violent crime falls -- the question is why?

The drop in crime seems to be uniform across North America. There are two ways to look at this: first, it may be that the fall is due to an ageing population and there is no reason for the "tough on crime" approach so popular of late, or, second, maybe the "tough on crime" approach is working.

My sense is that the stiffer criminal sanctions are having some effect but the larger part of the fall is from the populations getting older -- older folks commit less crime.

However, and the article below overlooks this, youth crime, especially violent youth crime, is getting worse per capita of youths. Why? Maybe the youth criminal justice system is too weak. Or perhaps the failure of families (and this is very real -- when I was 13 I knew one broken home, 13 year olds today might have a problem finidng a family not spilt up) is the cause.


Violent crime takes a dive

Killings Dropped in 2008. So did attempted murders. Montreal police say their drive to stop street gang crime is having an effect, but criminologists say it's also part of a trend seen across North America

By PAUL CHERRY
January 2, 2009


The list of names on the board is what always catches your eye.

Any visit to the Montreal police major crimes division's headquarters at Place Versailles always causes a person to glance at the white board on which investigators maintain a list of the homicide victims for the year.

Just as in the bestselling book Homicide: A Year on the Killing Streets - victims' names are written on the large white board in two different coloured markers, with unsolved cases standing out in a brighter colour for all to notice.

But today, there is something reassuring about the length of the list on the board.

With 29 homicides reported on the island of Montreal last year, the squad investigated the lowest number of cases since 1972, the year several police forces on the island were merged to create the Montreal Urban Community police (now known simply as the Montreal police). The previous record low was 35 in 2005. There were 42 homicides reported in 2006 and 41 in 2007.

Full story here: http://www.montrealgazette.com/Violent+crime+takes+dive/1133446/story.html

Organs for sale?

There is no doubt that we need more organs for transplant. Religious qualms are not significant -- all major faiths allow, indeed support, giving organs for preservation of life. But should people be paid for their organs? The argument against is not quite as simple as the article below suggests -- scandals in India suggest organ sales can be dehumanizing and dangerous. On the other hand, markets work and maybe allowing for sales of organs can increase supply safely.

Pro-life absurdity

Colby Cosh, National Post Published: Friday, January 02, 2009

Jim Young, Reuters

For once, a pro-lifer has it exactly right. Rod Bruinooge, who claims to have been elected the new head of the multi-party Parliamentary Pro-Life Caucus -- the group's membership is secret, but no one has come forward to contradict him on the matter -- told the Canadian Press on Tuesday: "In Canada you can't remove your kidney, and put it on eBay and auction it off. That is illegal. Whereas you actually can end a beating heart of an unborn child the second before it's delivered. Most Canadians would agree that is truly a poor bioethical position for our country to be in."

I don't claim to know what most Canadians think about kidney donation; my guess is they don't think about it at all. But the situation Mr. Bruinooge describes really is somewhat anomalous. Of course we should be able to have our kidneys removed and sell them on eBay. It is outrageous that the state claims the power to interfere in such a transaction; ownership of our own bodies is the paramount principle of bioethics. Permitting donors to be compensated for human tissue would encourage sincere efforts to defray the costs incurred by those making gifts of it, and would give dialysis patients dying on waiting lists alternatives to black-market organ purchases in countries less-well-equipped to handle transplant surgeries.

Story here:

http://www.nationalpost.com/story-printer.html?id=94663930-d3ea-47fc-a076-7abd03e1a9ae

Setting aside judgment; fresh evidence

Wednesday’s decision in HSBC Securities ( Canada ) Inc. v. Firestar Capital Management Corporation, 2008 ONCA 894 provides a useful review of two areas of civil law – the setting aside of default judgments and the admission of fresh evidence.

The Court’s analysis is clear and reads almost like a text:

[21] The motion judge’s discretionary decision whether to set aside a default judgment pursuant to rule 19.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, was governed by the following three-part test:

(a) Whether the motion was brought without delay after the defendant learned of the default judgment;

(b) Whether the circumstances giving rise to the default were adequately explained; and

(c) Whether the defendant has an arguable defence on the merits.

See Morgan v. Toronto (City) Police Services Board (2003), 34 C.P.C. (5th) 46 (Ont. C.A. ), at para. 19.

…

[30] In Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. (2007), 87 O.R. (3d) 479, at para. 2, this court indicated that on a motion to set aside a default judgment, the motion judge will be guided by the principles established by the authorities but must ultimately determine whether the interests of justice favour granting the order. The motion judge should consider the potential prejudice to the moving party if the motion were dismissed, the potential prejudice to the respondent if the motion were allowed, and the effect of any order on the overall integrity of the administration of justice.

…

[38] The respondent opposes the admission of the new evidence arguing that it does not meet any aspect of the four-part test set out by the Supreme Court of Canada in R. v. Palmer at p. 775, for the receipt of fresh evidence:

(a) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

(b) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(c) the evidence must be credible in the sense that it is reasonably capable of belief; and

(d) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

T.S. Eliot

For last year's words belong to last year's language

And next year's words await another voice.

from Little Gidding (No. 4 of 'Four Quartets')

A New Year