Mei Lan

Pensions

This issue is non-trivial.

Supreme Court decision stirs pension debate Terry Pedwell

Ottawa — The Canadian Press
Last updated on Saturday, Aug. 08, 2009 03:43AM EDT

A top labour lawyer is calling for government action to protect pensions after the Supreme Court ruled that a company can move pension plan money.

The court ruled Friday that Kerry Canada Inc. could transfer surplus cash from its defined-benefit pension plan to meet its obligations under a newer defined-contribution plan.

The court also concluded that the food company can pay its pension fund's "reasonable" administration costs from pension money.

The verdict could have implications for other companies that shift money between pension funds.

It also bolsters a call this week by Canada's premiers for a national summit on pensions, said Steven Barrett of the Toronto-based law firm Sack Goldblatt Mitchell.

"If anything, I think it reinforces the call for government and legislative action to enhance the pension plans of workers who are facing retirement with either pension plans that have been seriously eroded over the last year or so or workers who simply have no, or inadequate, pension coverage," said Mr. Barrett, who intervened in the case on behalf of the Canadian Labour Congress.

"[The court] in fact says it is up to legislatures and governments to develop pension plans that protect workers."

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Toronto jobless rate hits 10%

The garbage strike and CNN's reports didn't help the tourist industry either ...

Toronto jobless rate hits 10% 

Madhavi Acharya-Tom Yew      

Business Reporter     

The unemployment rate in the Greater Toronto Area hit the double-digits last month as a strong Canadian dollar and cool, wet weather took its toll on the tourism industry.

The city's jobless rate reached 10 per cent last month - its highest level since November, 1994, according to the latest figures released by Statistics Canada today.

That's up from 9.6 per cent for June.

"Toronto is important for the tourism sector, and tourism has been hammered by this downturn. We rely on visitors from abroad and the strong currency isn't helping," said Doug Porter, deputy chief economist at BMO Capital Markets in Toronto.

"The weakness in construction, too, has weighed very heavily on Toronto."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Bai Yun resting

Man blames cat for downloading child porn

Ok, as defences go it's creative. And I did hear of a cat once knocking over a telephone and pressing speed dial by mistake. But all those searches and keystrokes might be too much for most pussycats ...

Deputies say US man blames cat for downloading child porn by jumping on computer keyboard 

The Associated Press 

JENSEN BEACH, Florida - Florida investigators say a man accused of downloading child pornography is blaming his cat. Keith Griffin is charged with 10 counts of possession of child pornography after detectives found more than 1,000 images on his home computer. According to a sheriff's report Friday, Griffin told investigators that his cat jumped on the computer keyboard while he was downloading music. He said he had left the room and found "strange things" on his computer when he returned. Griffin is being held on $250,000 bond in the Martin County jail. It is unclear if he has an attorney.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Old Gospel song

I was listening to some old records and heard this Gospel song. It's worth a read.

These Things Shall Pass

These things shall pass and some great morning
We'll look back and smile at heartaches we have known
So don't forget when shadows gather
The Lord our God is still the King upon his throne
A rose looks grey at midnight but the flame is just asleep
And steel is strong because it knew the hammer and white heat
These things shall pass and life be sweeter
When love and faith are strong they cannot long endure
These things shall pass so don't you worry
The darkest time is just one hour before dawn
So hold up high and face your troubles
And don't despair if you must face them all alone

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Election over EI?

The chatter suggests a fall election but I'm still not convinced.

Fight over EI reform sparks election talk

Tories haven't brought enough to the table, Liberals say, hinting the issue could bring no-confidence vote in the fall

Jane Taber
Ottawa— From Friday's Globe and Mail

A young man surveys a job board at Youth Employment Services in Toronto.

The fight over employment insurance reform is emerging as a possible trigger for a fall election, as the Liberals accused the Tories Thursday of not putting forward a single idea at a meeting of the special bipartisan group formed to study the issue.

These are high-stakes meetings for both the Harper Conservatives and the Ignatieff Liberals. Liberal Leader Michael Ignatieff has made EI reform a centrepiece of his leadership and secured the creation of the special study group from Prime Minister Stephen Harper in exchange for not defeating the government in the spring.

Mr. Ignatieff has hinted broadly in recent days that he would be willing to bring in a motion of no-confidence in the fall, saying it's getting "tougher and tougher" to work with the Harper government.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Watermelon

Pension decision in SCC

The Supreme Court a moment ago released Nolan v. Kerry (Canada) Inc. 2009 SCC 39. A summary of the facts and the majority decision follows:
 
The respondent Company has administered a pension plan ("Plan") for its employees since 1954.  The Plan text required contributions from both the employees and the Company and a separate trust agreement provided that these contributions were to be paid into a trust ("Trust") created under the trust agreement and held in a trust fund ("Fund").  By 2001, the Fund had been in an actuarially determined surplus position for a number of years.  Until 1984, the Company paid the Plan expenses directly.  In 1985, following amendments to the Plan documents, third‑party Plan expenses for actuarial, investment management and audit services were paid from the Fund.  As of 1985, the Company also started taking contribution holidays from its funding obligations.

Prior to 2000, the Plan existed solely as a defined benefit ("DB") pension plan.  In 2000, the Plan text was amended again in order to introduce a defined contribution ("DC") component.  The DB pension component continued for existing employees, but was closed to new employees; thereafter, all newly hired employees would join the DC component.  Employees who were DB members had the option of converting to the DC component.  As a result of these amendments, employees were divided into Part 1 Members, who participated in the Plan's DB provisions and Part 2 Members who, after January 1, 2000, participated in the DC part of the Plan.  The Fund was constituted in two separate funding vehicles with two separate trustees.  The Company announced its intention to take contributions holidays from its obligations to DC members by using the surplus accumulated in the Fund from the DB component, which still covered DB members, to satisfy the premiums owing to the DC component.

After the Company introduced the amendments in 2000, certain former employees of the Company and members of the Plan (the "Committee") asked the Ontario Superintendent of Financial Services to investigate the Company's payment of Plan expenses from the Fund and its contribution holidays.  The Superintendent issued two Notices of Proposal.  Under the first, the Superintendent proposed to order that the Company reimburse the Fund for expenses that had not been incurred for the exclusive benefit of Plan members.  Under the second, the Superintendent proposed to refuse, among other things, to order the Company to reimburse the Fund for the contribution holidays it had taken.  Both the Company and the Committee requested a hearing before the Financial Services Tribunal to challenge the Notices of Proposal.  The Tribunal held that:  (1) all of the Plan expenses at issue could be paid from the Fund, except for $6,455 in consulting fees related to the introduction of the DC part of the Plan; and (2) the Company was entitled to take contribution holidays while the Fund was in a surplus position.  The Tribunal did recognize that the Plan documents as amended in 2000 did not permit DC contribution holidays.  However, it held the Company could retroactively amend the Plan provisions to designate the DC members as beneficiaries of the Fund, thereby allowing the Company to fund its DC contributions from the DB surplus.  The Tribunal also refused to award costs payable out of the Fund.

On appeal, the Divisional Court held that the expenses at issue could not be paid out of the Fund as they were not for the exclusive benefit of the employees and such payment would constitute a partial revocation of the Trust.  The court, although it upheld the Tribunal's decision that DB contribution holidays were permitted, ruled that the surplus in the Fund accumulated under the DB arrangement could not be used to fund the Company's contribution obligations to the DC arrangement.  It also held that, while the Tribunal was correct that it did not have jurisdiction to award costs out of the Fund, the court could do so.  On the relevant issues, the Court of Appeal, allowed the Company's appeal, dismissed the Committee's cross‑appeal and upheld the Tribunal's rulings.

Held (LeBel and Fish JJ. dissenting in part):  The appeal should be dismissed.

Per Binnie, Deschamps, Abella, Charron and  Rothstein, JJ.:  Having regard to the purpose of the Tribunal, the nature of the questions and the expertise of the Tribunal, the appropriate standard of review is reasonableness for the issues of Plan expenses and DB and DC contribution holidays.  While these issues are largely questions of law, in that they involve the interpretation of pension plans and related texts, the Tribunal does have expertise in the interpretation of such texts, as it is both close to the industry and more familiar with the administrative scheme of pension law.  The standard of reasonableness also applies to the issue of the Tribunal's authority to order costs from the Fund.  This issue involves the Tribunal's interpreting its constating statute to determine the parameters of the costs order it may make.  The question of costs is incidental to the Tribunal's broad power to review the Superintendent's decisions in the context of the regulation of pensions.  A court should adopt a deferential standard of review to the Tribunal's decision in this respect.

With the exception of the consulting fees relating to a study of the possibility of introducing a DC component to the Plan, the Company did not have the obligation to pay the Plan expenses at issue since the Plan documents did not require, expressly or implicitly, that it pay such expenses.  The provisions of the trust agreement, as amended in 1958,  provided that the Company undertake to pay trustee fees and trustee expenses.  As between the Company and trustee, these provisions only cover expenses incurred in the performance of the trustee's duties and in the execution of this Trust.  They do not refer to expenses otherwise incurred in the administration of the Plan.  Expenses associated with the employment of actuaries, accountants, counsel and other services required for the administration of the Plan are expenses of the Plan, but they are not fees and expenses incurred in the execution of the Trust.  Furthermore, the trust agreement's 1958 amendments, which provided that taxes, interest and penalties were to be paid from the Fund, could not impose any additional obligations on the Company because these amendments also included a provision expressly stating that the amendments do not increase the Company's original obligations with respect to the expenses for which it was responsible.  Nor could the language in the trust agreement forbidding the use of trust funds for any purpose other than the exclusive benefit of the employees impose an obligation on the Company to pay the Plan expenses.  The exclusive benefit language is also subject to the limitation that it will not enlarge the Company's obligations.  The payment of Plan expenses is necessary to ensure the Plan's continued integrity and existence, and the existence of the Plan is a benefit to the employees.  It is therefore to the exclusive benefit of the employees that expenses for the continued existence of the Plan are paid out of the Fund.  Lastly, allowing for the Plan expenses to be paid out of the Trust does not constitute a partial revocation of the Trust.  In the absence of an obligation requiring the Company to pay the Plan expenses, funds in the Trust can be used to pay reasonable and bona fide expenses and to the extent that the funds are paying legitimate expenses necessary to the Plan's integrity and existence, the Company is not purporting to control the use of funds in the Trust. 
 
The Company was entitled to take contribution holidays with respect to the DB benefit arrangement.  When plan documents provide that funding requirements will be determined by actuarial practice, the employer may take a contribution holiday unless other wording or legislation prohibits it.  The right to take a contribution holiday can be excluded either explicitly or implicitly in circumstances where a plan mandates a formula for calculating employer contributions which removes actuarial discretion.  Here, the Company's contributions are determined by actuarial calculations.  Clause 14(b) of the Plan, as amended in 1965, provides for contributions that will cover the members' future retirement benefits and requires the exercise of actuarial discretion as it does not fix annual contributions.  The clause therefore does not prevent the Company from taking a contribution holiday where the actuary certifies that no contributions are necessary to provide the required retirement income to members.  

The Tribunal's decision to allow contribution holidays in respect of the DC component of the Plan, once appropriate retroactive amendments are made, was not unreasonable.  There is no legislative restriction prohibiting the retroactive amendment designating DC members as beneficiaries of the Trust, the creation of a single plan and trust, and the DC contribution holidays.  The Plan documents do not preclude combining the two components in one plan and nothing in these documents or trust law prevents the use of the actuarial surplus for the DC contribution holidays.  Having regard to the Plan documents, it was reasonable for the Tribunal to find that there was one plan and that, with a retroactive amendment, there could be one trust and that contribution holidays with respect to either or both of the DB and DC components of the Plan did not violate the exclusive benefit provision or constitute a partial revocation of the Trust.  Similarly, it was not unreasonable that DC members could be designated beneficiaries of the Trust.  The fact that DB and DC funds will be held by different custodians does not prevent them from belonging to the same trust.  The Plan, after the retroactive amendments, would consist of DB and DC components.  Members of both parts of the Plan therefore would be beneficiaries of the Trust and use of funds in the Trust to benefit either part would be allowed because the Trust explicitly provides that the funds can be used for the benefit of the beneficiaries.

Retroactively permitting the funding of the DC component from the DB surplus does not affect the exclusive benefit provisions of the Plan.  Because the amendment will be retroactive, there would be no re‑opening of a closed plan in law and no attempt to merge two independent trusts.  The Plan and Trust in this case have not been terminated.  Only a part of the Plan has been closed to new employees.  There is, therefore, no actual surplus that has vested with the employees.  The DB surplus remains actuarial and the DB members retain their right to the defined benefits provided for under the Plan.  Their interest in the surplus is only to the extent that it cannot be withdrawn or misused.  Retroactively amending the Plan takes no vested property right away from the DB members.  They have no right to require surplus funding of the Plan in order to increase their security.   

In light of s. 24 of the Financial Services Commission of Ontario Act, 1997, the Tribunal did not err in holding that it could not award costs from the Fund.  Since the Fund was not a party to the proceedings, the Tribunal could not order costs from the Fund.   

The Court of Appeal correctly declined to award costs to the Committee from the Fund.  The key question is whether the litigation is adversarial or whether it is aimed at the due administration of the pension trust fund.  Adversarial claims will not qualify for a costs award from the trust fund.  Here, the litigation was adversarial in nature because it was ultimately about the propriety of the Company's actions and because the Committee sought to have funds paid into the Fund to the benefit of the DB members only.  The Company was successful in this case and there is no reason to penalize it by diminishing the Fund surplus, thereby reducing its opportunity for contribution holidays. 

 

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Unemployment rate

Following little change in June, employment declined by 45,000 in July, with losses in both full- and part-time work. The unemployment rate remained unchanged at 8.6%, as fewer people participated in the labour market.

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Bondage with ease then strenuous Liberty

"But what more oft in Nations grown corrupt,

And by their vices brought to servitude,

Then to love Bondage more than Liberty,

Bondage with ease then strenuous Liberty."

Milton, Samson Agonistes

Freedom is hard work -- remember the Israelites complaining the Moses about how cushy life was in Egypt? A gilded cage is still a cage and we must always be on guard to protect our liberty.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Run and jump! Splash down!!!

Two frauds two sentences

Today's National Post contrasted two fraud sentences: in Canada the six and seven years sentences in Livent and in the United States a 100 year sentence for an elaborate fraud.

In Livent the judge carefully reviewed the case, the defendants' backgrounds and decided on the sentence. Whether upheld on appeal or not, the sentence is clearly articulated and sensible.

By contrast, in the 100 year sentence the Court merely gave in to unreflective vengeance. A 100 year sentence is wholly arbitrary; it is merely a modern form of the 18th Century's Bloody Code where virtually all offences had the same penalty, death. The 100 year sentence reflects nothing more than moral cowardice.

Freedom for wolves means death for sheep

Isaiah Berlin

Giovanna

Question for Birthers

Suppose Obama was born in Kenya.

Suppose he isn't President.

So you just made Biden the man with the nuclear codes. Is this a good idea?
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

August 6, 1945

Sixty four years ago today and atomic bomb as dropped on Hiroshima.

The bomb was released at 08:15 (Hiroshima time). The gravity bomb known as "Little Boy", a gun-type fission weapon with 60 kilograms of uranium-235, took 57 seconds to fall from the aircraft to the predetermined detonation height about 600 metres above the city.

Due to crosswind, it missed the aiming point, the Aioi Bridge, by almost 240 m and detonated directly over Shima Surgical Clinic.

It created a blast equivalent to about 13 kilotons of TNT. (The U-235 weapon was considered very inefficient, with only 1.38% of its material fissioning.)

The radius of total destruction was about 1.6 km, with resulting fires across 11 km2. Americans estimated that 12 km2 of the city were destroyed. Japanese officials determined that 69% of Hiroshima's buildings were destroyed and another 6–7% damaged.

70,000–80,000 people, or some 30% of the population of Hiroshima were killed immediately, and another 70,000 injured. Over 90% of the doctors and 93% of the nurses in Hiroshima were killed or injured; most had been in the downtown area which had been greatly damaged.

More Pandas

White collar crime and conditional sentences

In Canada flat out lies don't fly in political debate -- they work in the US it seems but that's another posting.

That said, shading reality seems ok.

The story below repeats the canard that the Conservatives are being blocked in dealing with white collar crime.

How?

Because the Opposition wants to consider carefully Conservative plans to gut conditional sentencing.

White collar criminals who steal hundreds of thousands of dollars don't get conditional sentences -- the people who do are single moms who are caught cheating on welfare.

Whether appropriate or not -- and the Conservative proposals on conditional sentences are not irrational -- the proposed changes won't impact serious white collar crime one bit.

Conservatives say opposition blocking efforts to fight white-collar crime

Montrealgazette.Com

The federal Conservative government is blaming opposition parties for watering down its efforts to beef up the criminal justice system to make it easier to catch potential fraudsters and
thieves.

After a meeting in Montreal with people alleged to have been bilked
by financial adviser Earl Jones, Christian Paradis, minister of
public works and government services, and Dave MacKenzie,
parliamentary secretary to the minister of public safety, said the
Conservative government is being obstructed in its attempt to fight
white-collar crime.

"The Conservative government continues to believe that we need
tougher sentences for serious crimes, including fraud and theft,"
the ministers said in a statement. "We continue to believe the
rights of victims should come before the rights of criminals.

"Unfortunately, the Bloc (Québécois), the Liberal Party and the New Democratic Party use every tactic to obstruct, delay and water down our efforts to strengthen our criminal justice system."

The statement said during the last Parliament, the opposition voted
to gut a Conservative bill that would have done away with house
arrests for offences like fraud. Criminals convicted of theft over
$5,000, robbery and breaking and entry are still eligible to do
their time "in the comfort of their home," the ministers said.

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

A new idea

I have noticed that many comments are totally off topic -- so readers comment on the Sponsorship Scandal in a Polar Bear post. For a moment I thought of pulling the comments, but then I thought again because I never pull comments unless violent, sexually explicit or bigoted. Even if you think I am totally wrong -- and many comments suggest that -- I am happy for the response.

So, I will try to post once in a while calling for comments on anything. Perhaps that will spark posts but, if not, it will still allow for an exchange.

SO, COMMENT AWAY!!!

Murder's blog

George Sodini, the fitness club killer, had a blog that outlined his murderous plans for months. The local police have speculated (see below) why no one reported the blog.

My sense is not that heartless web-surfers ignored the plans of a murderer. Rather, I'll bet no one read the blog.

It's actually quite hard getting blog traffic. If you set up a webpage and don't link to blogcrawlers and Google you may well have no readers at all.

Anyway, here's the details:

"The blog -- which Supt. Moffatt said was being treated as genuine, and which was quickly pulled off the Internet -- reveals the sinister, often banal mind of a man crippled by sexual frustration, anger at women, and depression.

A picture of Sodini, 48, attached to the blog shows a lean, white male with slightly greying hair and wearing a smart blue shirt.

Supt. Moffatt said the blog clearly showed "the hatred in him" and that computer sleuths were looking into whether anyone saw the blog -- and if so, why they didn't report it."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Newborn tiger

And now for something completely different! Not a bear!!!

On Liberty

Doing a little research I came across this passage from John Stuart Mill's On Liberty:

"That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant."

That seems right. But what is "harm to others"? Does that include "moral harm", as in actions destructive of morals? What about economic harm as in activities that restrain trade? Or is it just physical harm? A simple passage with significant depth.

More Panda News -- a photo and video

The newborn panda is the little creature just above Bai Yun


VIDEO OF BIRTH: http://www.sandiegozoo.org/videos/?bcpid=4552241001&bclid=5172095001&bctid=32205190001



SAN DIEGO - Prized San Diego Zoo panda mom Bai Yun has given birth to her fifth cub, the zoo announced Wednesday.



The cub, born to 17-year-old Bai Yun (White Cloud), becomes just the 13th panda in the United States.



It was born at 4:58 a.m. Wednesday, zoo spokeswoman Jenny Mehlow said.

A second fetus had been detected, but Mehlow said it was probably absorbed in the mother's uterus.



The pink panda newborn weighed about 4 ounces (113 grams) and is about the size of a stick of butter. Its gender won't be known for about a month, Mehlow said, and it won't get a name for 100 days, in line with Chinese tradition.



Mom and cub will lead private lives for the next four months or so, but they will appear on the zoo's live Panda Cam, which can be watched online.



Bai Yun, who weighs about 300 pounds (136 kilograms), was born in a breeding centre in China and arrived in San Diego in 1996.



The zoo announced just last week that Bai Yun was pregnant, based on ultrasound tests.
The father is longtime consort Gao Gao (Big Big), who has fathered three of Bai Yun's other cubs.
The number of cubs makes the pair one of the most reproductively successful panda couples ever in captivity.



Pandas are notoriously poor breeders - one reason their species is endangered - and females have only three days a year in which they can conceive. Only about 1,500 giant pandas remain in the wild, and around 250 live in captivity.
Bai Yun and Gao Gao meet only a couple of days a year. When Bai Yun enters her fertile periods, zookeepers make sure Gao Gao is there, sniffing her through a perforated gate zookeepers call a "howdy door" until her chirps and bleats indicate she's ready to get down to business.



Bai Yun gave birth to her first cub in 1999 through artificial insemination from her first arranged suitor, Shi Shi (Stone). Hua Mei (China/U.S.A.) was the first giant panda cub born in the United States after a decade of failed breeding attempts. She has had three sets of twins since returning to China in 2003.



Bai Yun's newest cub will probably be returned to China around age 3 or 4, Mehlow said.
Gao Gao, who was born in the wild, arrived in San Diego in 2003 after veterinarians gave up on Shi Shi, who turned out to be older and less virile than originally believed and was returned to China. Shi Shi died last year.



Some males never succeed at natural breeding, so artificial insemination has become common practice when breeding captive pandas.
-

From San Diego -- A new Panda!!!

Panda Cub Arrives!

Posted at 10:37 am August 5, 2009 by Suzanne Hall

We have a new addition to our panda collection at the San Diego Zoo. At 4:58 this morning, Bai Yun gave birth to a vigorous, squawking infant! The staff here is elated and is, as always, in awe of Bai Yun and her perfect maternal skills.

She had appeared more restless than usual in the last 24 hours, resting for shorter periods with intermittent nest building through the day and night. At about 2:45 this morning, she was observed leaning back and holding her feet. Regular changes of position become common at this stage of labor, and contractions were evident as the time went by. Bai Yun handled it all well, and staff agreed that this seemed like one of her easiest labors.

At 4:58 a.m., Bai Yun stood up and had a series of contractions while on all fours. With the last one, we suddenly heard the loud squawking we had all been anticipating. As Bai Yun turned around to gather up the cub, we all got a glimpse at a wriggling infant on the floor, crying loudly for attention. Bai Yun immediately attended to her newest offspring and spent the next half hour or so soothing it, cradling it in her arms and licking it.

Joint custody

Today's Court of Appeal decision in Giri v. Wentges, 2009 ONCA 606 repeats the long standing principle that joint custody will only be granted where the parents can cooperate:

[10]          Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child: see Kaplanis v. Kaplanis (2005), 249 D.L.R. (4^th) 620 (Ont. C.A.). 

 

 

Livent 6 and 7 years

Ok, I was wrong -- I thought 5 years. These are longer sentences than most observers expected.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Commons industry committee to hold emergency meeting on sale of Nortel assets (Nortel)

Source: The Canadian Press
Aug 5, 2009 9:58

OTTAWA_ The House of Commons industry committee wants to talk to the lead players in the Nortel Networks asset sale drama.

The committee has called for an emergency meeting this Friday to discuss the auction process that ended up with Swedish telecom company Ericsson the successful bidder for a chunk of Nortel's wireless technology business.

Officials from Industry Canada, Ericsson and BlackBerry maker Research in Motion (TSX:RIM), which made a failed bid for the assets, will be at the meeting.

It's not known exactly what will be discussed, but RIM has complained that it was shut out of the auction that saw Ericsson scoop up assets from the insolvent telecom equipment maker for $1.13 billion.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Shariah law attacked

I read a piece in the Post this morning that suggested Shariah law was a great danger because Islam was a universal religion that believes everyone should be a Muslim. I thought that was an interesting point and read on to learn what specifics the writer found so problematic.

The writer found two -- a nursing home in England where the Muslim owner declined to serve pork and a City where the police bought headcoverings for women officers to put on when they entered a Mosque.

I pause.

That's it? No bacon in a British nursing home and headcovering to show respect when enetering a Mosque?

If that's the extent of the danger to Western society I'm not too worried... .




Why shariah must be opposed
Daniel Pipes, National Post Published: Wednesday, August 05, 2009

Those of us who argue against shariah are sometimes asked why Islamic law poses a problem when modern Western societies long ago accommodated Halacha, or Jewish law. In fact, this was one of the main talking points of those who argued that shariah law should become an accepted part of dispute resolution in Ontario in 2005.

The answer is easy. A fundamental difference separates the two: Islam is a missionizing religion, Judaism is not. Islamists aspire to apply Islamic law to everyone, while observant Jews seek only to live by Jewish law themselves.

Two very recent examples from the United Kingdom demonstrate the innate imperialism of Islamic law. The first concerns Queens Care Centre, an old-age home and daycare provider for the elderly in the coal town of Maltby, 40 miles east of Manchester. At present, according to The Daily Telegraph, not one of the centre's 37 staff or 40 residents is Muslim. Although the home's management asserts a respect for its residents' "religious and cultural beliefs," QCC's owner since 1994, Zulfikar Ali Khan, on his own decided this year to switch the home's meat purchases to a halal butcher.


Full sory here: http://www.nationalpost.com/story.html?id=1860105

Panda-mania!!!

Video of the Panda birthday parties! And note, a new panda baby is expected any moment!

http://www.sandiegozoo.org/videos/?bcpid=4552241001&bclid=5172095001&bctid=31675208001

Looking at the clouds

Privacy Slipping Away?

It always happens; you are in a rush and person ahead of you in Walmart is buying a chocolate bar with a debit card. They scan their debit card, then the paper prints and after the signing and the transaction is complete you are tempted to scream! Of course, it’s perfectly ok to use a debit card for anything at all and the government is glad of it as it has the effect of limiting the underground (non-tax paying) economy.

But there is a more significant issue at stake.

Every time you scan your debit card for a purchase another electronic notation of who you are and what you are doing is created. Every time you use a 407 or a loyalty points card at a drug store or a hotel you are letting someone know where you are and where you have been. Now perhaps that’s not an issue for the specific transaction (who cares if you bought a chocolate bar last Wednesday?) but over time a significant portfolio of who you are and what you do is created. Popular novels have been written about data mining where commercial companies collect information about individuals from thousands of sources—credit cards, loyalty programs, employment and banking records, government filings, and many more—then analyze and sell the data. The specter of Big Brother is among us.

That said, there are protections in law for your privacy.

In Canada, federal and provincial laws regulate the collection, use and storage of personal information by businesses. Canada has two federal privacy laws: the Privacy Act, and the Personal Information Protection and Electronic Documents Act (PIPEDA). The Freedom of Information and Protection of Privacy Act applies to Ontario’s provincial ministries and most provincial agencies, boards and commissions, as well as community colleges, universities and does not really apply to commercial businesses.

PIPEDA gives individuals the right to see and correct any personal information about them collected by companies as part of their ongoing business. Specifically businesses must inform consumers of who is collecting the information, why the information is being gathered, and for what purposes it will be used.

Under PIPEDA, personal information can be collected about you only as long as it is:

Gathered with the knowledge and consent of the consumer

Collected for a reasonable purpose

Used only for the reasons for which it was gathered

Accurate and up to date

Open for inspection and correction by the consumer


If PIPEDA is breached the Privacy Commissioner of Canada is entitled to investigate. The Privacy Commissioner has the authority to investigate complaints regarding privacy issues—and also to publish the results of the investigation. This power generally has the effect of leading to resolutions of complaints. However, if an individual is still not satisfied they can bring a case to the Federal Court. If the Court rules that an organization has contravened the law, it must correct its practices. The Court can also award damages if warranted.

While we have to be cautious about revealing personal information too widely, there are protections in law for our privacy.

Insufficiency of reasons

Today's Court of Appeal decision in R. v. Wigle, 2009 ONCA 604 gives a good summary of the appeal court's role in reviewing a decision based upon insufficiency of trial reasons:

[29] The Supreme Court of Canada has cautioned appellate courts about the limited parameters of appellate review based on a challenge to the sufficiency of a trial judge's reasons.

[30] Insufficiency of reasons is not a stand-alone ground of appeal. In R. v. R.E.M., [2008] 3 S.C.R. 3at para. 25, the Supreme Court quoted from R. v. Braich, [2002] 1 S.C.R. 903, which, in turn, cited the principle from para. 33 of Sheppard, that "the appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case".

[31] A trial judge's reasons are sufficient if they explain to the parties why the decision was made, provide public accountability, and permit appellate review: see R.E.M., at paras. 11 and 15.

[32] In deciding whether reasons are sufficient, appellate courts are instructed to take a functional approach asking whether the trial reasons achieved the three purposes of explanation, accountability and reviewability. Even if the reasons, standing alone, do not satisfy their intended functions, the appellate court must turn to the trial record and its context to identify and attempt to communicate the basis for how and why the trial judge arrived at the decision. Only if that basis cannot be identified from the record will the appellate court order a new trial: see R. v. Sheppard, [2002] 1 S.C.R. 869, at paras. 28 and 50.

[33] In R. v. Dinardo, [2008] 1 S.C.R. 788, Charron J. underscored the importance of a trial judge's credibility findings to the sufficiency of reasons. She observed at para. 26 that "[n]evertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error". Further, at para. 29, Charron J. noted that, in the context of the focus on the complainant's credibility and the testimony of the accused denying the allegations, "it was incumbent upon the trial judge to explain, even in succinct terms, how he resolved these difficulties to reach a verdict beyond a reasonable doubt."

[34] In the circumstances of that case, the court reasoned at para. 31:

While it was open to the trial judge to conclude that he was convinced beyond a reasonable doubt of the guilt of the accused, it was not open him to do so without explaining how he reconciled the complainant's inconsistent testimony, particularly in light of the accused's own evidence denying her allegations.

[35] The court in R.E.M. also specifically commented about the approach to credibility findings in determining the sufficiency of reasons. The court noted at paras. 49 and 48 the "delicate" nature of credibility findings and the difficulties faced by trial judges in articulating and verbalizing the "complex intermingling of impressions" that underlie such determinations. R.E.M. referred to Dinardo regarding the sufficiency of credibility findings and noted at para. 50 that credibility findings, which "must be made with regard to the other evidence", "may require at least some reference to the contradictory evidence."

[36] Before coming to a conclusion about the sufficiency of reasons challenged on the basis of credibility issues, an appellate court will review the reasons in the context of the whole of the record and the circumstances of the case to determine from this review the basis for the trial judge's credibility findings. As McLachlin C.J. explained the approach at para. 55 of R.E.M.:

The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions.

[37] However, the court also explained at para. 56 that the trial judge need not "describe every consideration leading to a finding of credibility" and that "[r]easonable inferences need not be spelled out." Indeed, it is important to note that a trial judge is under no obligation to deal with every piece of evidence in arriving at his or her factual findings. Nonetheless, the court further observed, at para. 57, that to permit meaningful appellate review, reasons must disclose "the foundation of the conviction."

Tuesday morning - yawn!

Livent and entertainment sentencing

They'll get under ten years. The kid who downloaded 32 songs, he'll have a fine of $400,000.00. Yup, sensible sentencing in the entertainment business.

Livent duo to be sentenced on Wednesday

Shannon Kari, National Post
Monday, Aug 3, 2009



Garth Drabinsky and Myron Gottlieb are unlikely to spend more than a few hours in custody even if they are sentenced to a prison term Wednesday by Ontario Superior Court Justice Mary Lou Benotto.

The Crown is seeking eight to 10 years in prison for the founders of Livent Inc., after they were convicted of orchestrating an accounting fraud scheme at the theatre company for several years.

Drabinsky and Gottlieb are asking for conditional sentences or house arrest, with community service that would include lectures at business and theatre schools across the country.

The legal precedents suggest a term much closer to what the prosecution is seeking is the more likely result when Judge Benotto hands down her sentence.

But the former theatre executives are almost certain to be granted bail the same day, after a hearing before a judge of the Ontario Court of Appeal, pending an appeal of the verdict and the sentence.

White collar criminals are generally granted bail in Canada while they appeal, unlike the United States for example, where Conrad Black remains in jail as he waits for the Supreme Court to hear an appeal in his case.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Zhen Zhen turns two -- happy birthday!

Schreiber in German jail

I never thought I'd read this story. How many years to extradite him? Well, it's done -- now we should try to figure out how to avoid such delays in future.

Schreiber in German jail

Nick Aveling      

Staff Reporter     
 

Karlheinz Schreiber was taken to prison in Germany today. He was extradited from Canada yesterday after losing a decade-long court battle.

Schreiber, a former arms-industry lobbyist and key figure in a political financing scandal involving former German chancellor Helmut Kohl, landed in Munich around 9:30 a.m. local time and was taken to a jail in nearby Augsburg, where prosecutors accuse him of bribery and tax evasion.

Officials will read Schreiber the arrest warrant against him on Tuesday and then bring him before a judge, who will decide whether to keep him in custody pending formal charges, Augsburg state court spokesman Karl-Heinz Haeusler said.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Morning rant

Am I the only person who goes crazy when someone is buying a $2.00 chocolate bar and they pay with a debit card???
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Hate crimes in Tel Aviv?

A sad story -- and a terrorist act even if totally unrelated to Middle East issues...

JERUSALEM - Israel's gay community was rocked on Sunday by the killing of two people in a gay youth centre and the possibility they fell victim to a hate crime in the Jewish state's most freewheeling city.

"The biggest shock is to think that it happened in Tel Aviv, which is the most tolerant city in the country," said Avi Sofer, a gay rights activist.

Witnesses said a masked gunman clad in black opened fire on Saturday night in a basement club belonging to the Tel Aviv Gay and Lesbian Association, which was hosting a weekly event for teenage gays.

The attacker killed a 26-year-old man and a 16-year-old girl and wounded 13 people before fleeing, hospital officials said.

...

Police said they were still searching for the attacker and that the shooting was not an anti-Israeli attack by a Palestinian but gave no other details, citing a court order banning publication of details of the investigation.
...
If the incident proves to be a hate crime, it will mark the most serious attack against the gay community in Israel's history.

Condemning what he called a "horrific killing", Prime Minister Benjamin Netanyahu told his cabinet: "We are a tolerant, democratic country governed by the rule of law and we must respect each and every person."
...
Nitzan Horowitz, an openly gay legislator, said he had no doubt there was a connection between the latest killings and what he termed incitement against the gay community in Israel.
"
We demand that the government put an end to this hate campaign and that the Education Ministry institute proper information and education at schools in order to prevent the recurrence of such shameful events," Horowitz said.

Despite anti-gay sentiments among some religious Jews in Israel, gays serve openly in the military. Israel accords same-sex couples a measure of legal recognition and cohabitation rights, though Orthodox religious authorities control formal nuptials in the country.

...

Summer flowers

Shakespeare???

Caribana

Caribana is a festival of Caribbean culture and traditions held each summer in the city of Toronto, Ontario, Canada. Annually Caribana draws hundreds of thousands of tourists from around the globe to Toronto's lakeshore. Caribana is a Caribbean Carnival event, that has been billed as North America's largest street festival, frequented by over 1.3 million visitors each year for the festival's final parade.The entire Caribana event, which is one of the first Caribbean Carnivals along with those in New York City, Notting Hill and Boston to be held outside of the Caribbean region, brings in over one million people to the shores of Toronto pumping an estimated $250 million into the local economy.