Cette semaine, deux documents ont été libérés. L'un était un document officiel publié officiellement aux membres du Parti. Il a été publié en français et en anglais. Le document officieux a été d'autres et semble avoir été publié uniquement en anglais. Le document officieux est longue et minutieuse. Il énonce les raisons de tirer des conclusions. Le Livre Officiel est court et ne donne que des conclusions. J'ai deux préoccupations. Le Livre Officiel ne conduit pas à un débat, il donne juste des conclusions. Le document officieux ne sont pas disponibles en français et, tout écrit pour les membres du Parti, n'a pas été libéré pour eux. Nous avons besoin de la direction de membres, pas des ordres à ses membres.
This week two papers were released. One was an Official Paper formally released to Party members. It was released in French and English. The other paper was unofficial and seems to have been released only in English. The unofficial paper is lengthy and careful. It sets out reasons for conclusions. The Official Paper is short and only gives conclusions. I have two concerns. The Official Paper does not lead to debate; it just gives conclusions. The unofficial paper is not available in both Official languages and, while written for Party members, was not released to them. We need direction from members; not orders to members.
Saturday, November 12, 2011
Friday, November 11, 2011
A small story lost in Remembrance Day: Conservatives plead guilty to violating election rules
The plea agreement saves the Conservatives from potential embarrassment of conviction after trial and the reduced charges let the Party spin it made an honest mistake. Still, it's hard to see how the result is a "big win" -- unless saying something is true makes it so:
http://www.vancouversun.com/news/Conservatives+plead+guilty+violating+election+rules/5695342/story.html#ixzz1dQuZ1glr
http://www.vancouversun.com/news/Conservatives+plead+guilty+violating+election+rules/5695342/story.html#ixzz1dQuZ1glr
After four years of denying wrongdoing, the federal Conservative party and its fundraising arm has pleaded guilty to overspending on advertising in the 2006 election and violating electoral law in the long running "in and out" case.
The party and the Conservative Fund Canada each entered guilty pleas to two reduced Elections Act offences in an Ottawa courtroom Thursday afternoon after cutting a deal with Crown prosecutors.
The Tories admitted to exceeding the $18.3-million spending limit and filing an election return that did not report all expenses incurred.
The Crown agreed to withdraw related charges against four Conservative officials, including two sitting senators, Irving Gerstein and Doug Finley.
Judge Celynne Dorval of the Ontario Court of Justice assigned the stiffest penalties available under the law. In total, each organization will pay $52,000 in fines. That's just a fraction of the amount prosecutors say was illegally transferred from the party to its candidates to fund advertising purchases during the final weeks of the 2006 election.
Even as the party admitted it had broken the law, the Tories showed no sign of contrition and issued a statement claiming they had scored "a big victory" in the case, noting that no individuals were found to have done anything wrong.
"The Conservative Party of Canada plays by the same rules as everyone else; we acted under the law as it was understood by Elections Canada at that time," the party said.
Supporting Women Candidates
The Judy LaMarsh Fund is an essential tool to work towards true gender equity in Canadian politics. But at the moment it is just a line item -- it is not a stand alone fund. The Women's Commission expressly does not raise funds. Especially with electoral funding changes women candidates will need all the support we can give them. Let's make the Judy LaMarsh fund a dedicated fund, with major focus, and ensure that it can provide the support we will need in the next election.
Thursday, November 10, 2011
Latent and Patent defects in Real Estate
Cotton v. Monahan, 2011 ONCA 697 is a useful decision that applies the doctrine of latent and patent defect in the context of the sale of real estate. To succeed in a claim for damages on purchasing a house, absent some contrary contractual agreement, a purchaser must establish that the vendor knew of latent defects and concealed the latent defects or made representations with reckless disregard for the truth. The Court held:
[3] The trial judge dismissed the claim by applying the decision of this court in McGrath v. McLean (1979), 22 O.R. (2d) 784, which held that to be successful in such a claim, a purchaser must establish that the vendor knew of the latent defects, concealed the latent defects or made representations with reckless disregard for the truth.
[4] The respondent husband was a handyman who had no formal training. He was not fully aware of building codes or standards and did not consult with professionals when undertaking the repairs. The trial judge found that the respondents did not know that any of the workmanship was defective when they covered it with dry-wall in the normal course of completing the improvements. The trial judge found that the respondents lived in the house for several years after the renovations with no problem. The trial judge further found that the respondent husband was a prudent and careful person who would not have knowingly exposed his family to risk.
[5] In our view, the trial judge’s finding that the respondents were simply unaware that the workmanship was defective is fatal to the argument that they concealed the defects in order to sell the property or that they were wilfully blind with regard to the defects.
[6] We do not accept the submission that the trial judge erred in failing to find that the actions of the respondents amounted to “concealment” as that term is used in McGrath v. McLean. In our view, “concealment” in this context connotes an act done with an intention to hide from view some defect of which the vendor is either aware or wilfully blind. The trial judge did not err in holding that “active concealment” was required as that formulation of the test is well established: see Gumbmann v. Cornwall (1986), 44 R.P.R. 114 (Ont. H.C.J.) at para. 63; Guglielmi v. Russo, 2010 ONSC 833, 92 R.P.R. (4th) 117 (
[7] On the facts as found by the trial judge, the respondents merely completed their renovations in the ordinary course without any knowledge or wilful blindness as to any defects in the work. The appellants were aware of the fact that the respondents had done extensive renovations on their own without a permit and without inspection. If the appellants wanted a guarantee that the work had been done to their desired standard, they were obliged to bargain for an express warranty to that effect to replace the presumptive rule of caveat emptor.
Perry's Painful Performance
This is the end for Perry.
It is painful to watch.
You have to wonder if he never had media training?
Rule #1 NO DEAD AIR.
If he forgot the third agency he should have just moved on and said, 'and let me tell you more about why [agency #2] has to go' [blah blah blah]:
http://bit.ly/vUFbDV
Texas Gov. Rick Perry admitted Thursday he "stepped in it" with a humiliating 53-second brain fog during a televised debate last night, but he tried to tough it out in a series of interview.
It is painful to watch.
You have to wonder if he never had media training?
Rule #1 NO DEAD AIR.
If he forgot the third agency he should have just moved on and said, 'and let me tell you more about why [agency #2] has to go' [blah blah blah]:
http://bit.ly/vUFbDV
Texas Gov. Rick Perry admitted Thursday he "stepped in it" with a humiliating 53-second brain fog during a televised debate last night, but he tried to tough it out in a series of interview.
Wednesday, November 9, 2011
Misapprehension of evidence
R. v. Mahmood, 2011 ONCA 693, released today, gives useful guidance on misapprehension of evidence at trial. Not every failure at trial renders a decision subject to appeal. Misapprehension of evidence, when advanced as a ground to impeach a final verdict, must be material, not merely peripheral to the reasoning of the trial judge, in other words, the reasons must play an essential part in the reasoning process resulting in a conviction:
The Governing Principles
[46] A misapprehension of evidence may involve a failure to take into account an item or items of evidence relevant to a material issue, or it may have to do with a mistake about the substance of the evidence. A misapprehension of evidence may also reflect a failure to give proper effect to evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538.
[47] Every misapprehension of evidence does not render a trial unfair or result in a miscarriage of justice. An appellate court must determine the nature and extent of an alleged misapprehension and its significance to the decision under review, whether a determination of admissibility or a final conclusion about guilt. Rulings on admissibility and final verdicts must be based exclusively on evidence adduced at trial: Morrissey, at p. 541.
[48] The standard applied where an appellant advances misapprehension of evidence as a ground of appeal is stringent. The misapprehension of evidence, when advanced as a ground to impeach a final verdict, must be material, not merely peripheral to the reasoning of the trial judge, in other words, the reasons must play an essential part in the reasoning process resulting in a conviction, not just in the narrative of the judgment: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.
The Governing Principles
[46] A misapprehension of evidence may involve a failure to take into account an item or items of evidence relevant to a material issue, or it may have to do with a mistake about the substance of the evidence. A misapprehension of evidence may also reflect a failure to give proper effect to evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538.
[47] Every misapprehension of evidence does not render a trial unfair or result in a miscarriage of justice. An appellate court must determine the nature and extent of an alleged misapprehension and its significance to the decision under review, whether a determination of admissibility or a final conclusion about guilt. Rulings on admissibility and final verdicts must be based exclusively on evidence adduced at trial: Morrissey, at p. 541.
[48] The standard applied where an appellant advances misapprehension of evidence as a ground of appeal is stringent. The misapprehension of evidence, when advanced as a ground to impeach a final verdict, must be material, not merely peripheral to the reasoning of the trial judge, in other words, the reasons must play an essential part in the reasoning process resulting in a conviction, not just in the narrative of the judgment: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.
Family law disclosure obligations
Donna Reid Spettigue and Charles Spettigue v. David G. Varcoe, 2011 ONSC 6618 has a useful summary of the law relating to disclosure obligations in family law:
A. The Parties’ Financial Disclosure Obligations
[15] The parties in this case all had a positive duty to provide meaningful financial disclosure in order to ensure that the issues of child support and contribution to section 7 expenses could be effectively addressed. This obligation flows from a number of sources. First, there is a general duty in all cases to disclose information that is relevant and material to the case, subject to any claims respecting privilege or other exclusionary rules of evidence.[2] The general obligation to disclose information that is material and relevant to the case is reinforced by Rule 19 of the Family Law Rules,[3] which requires a party, upon request by another party, to produce an Affidavit of Documents listing every document that is relevant to any issue in the case, and is in the party’s control or available to the party on request.
[16] In this case, the obligation to provide financial disclosure also flows from Rule 13, relating to Financial Statements. Rule 13(1) (a) and (b) direct that when a claim is made for child support, the person making the claim is required to serve and file a Financial Statement with all necessary attachments thereto, unless the only support claim is for the Table amount of child support under the applicable Child Support Guidelines and the pleading does not include a property claim or request for exclusive possession of the matrimonial home. A party responding to the support claim is required to serve and file a Financial Statement within the time allowed under the Rules to respond to the claim. Rule 13(4.2) contains similar provisions relating to Motions to Change Final Orders.
[17] Rule 13(6) requires parties who are obliged to serve Financial Statements to make “full and frank disclosure” of their financial situation. Mr. Spettigue referred me to the case of Meade v. Meade[4], which is helpful in establishing what is required of self employed individuals in order to satisfy the requirement of full and frank disclosure. The court held in that case that self employed individuals have a positive obligation to “put forward not only adequate, but comprehensive records of income and expenses.” They are not required to provide audited Financial Statements, but must provide a package of disclosure from which information regarding the party’s income can be reasonably gleaned without the necessity of carrying out cumbersome calculations and costly investigations and examinations.
[18] The other source of the parties’ obligation to provide financial disclosure in this case is the federal Child Support Guidelines. Section 21 of the Child Support Guidelines set out the minimum financial disclosure which must be provided when a claim for child support or contribution to section 7 expenses is made.
[19] Where a party has complied with their minimum financial disclosure obligations set out in the Family Law Rules and the Child Support Guidelines as described above, a more detailed and in depth analysis of their financial situation may nonetheless be required in cases where questions arise as to whether the income reported by a party is an accurate reflection of their true income. As child support is the right of the child, who is typically not a party in child support proceedings, it is incumbent upon the court to err on the side of more extensive disclosure if this is necessary to ensure that the child receives the full protection of the law and the most fulsome benefit of support from their parents. This approach is consistent with the principle articulated by the Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra[5] that any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.
Complex problems have simple, easy to understand, wrong answers: Henry Louis Mencken
OTTAWA—Restoring the pillars of a strong middle class is key to Canada’s economic recovery, says Liberal interim leader Bob Rae in an address to be delivered Wednesday.
...
“The trouble with the populist narrative, whether of the left or the right, is its essential dishonesty, as if a simple bumper sticker — “tax the rich” or “tough on crime” is really going to provide answers to the real issues we face as a country,” Rae says in the text of the speech, provided in advance to the Star.
“We Liberals find ourselves competing with two other parties with simplistic messages. The Conservatives want tax giveaways for the better off, the NDP wants to raise taxes and then throws in a ‘tax-the-rich’ message for good measure.”
Tuesday, November 8, 2011
Eighth Annual Zareinu Fashion Show to Hit the Runway Next Week in Support of Children with Special Needs
TORONTO, ON - October 18, 2011 - On November 16, 2011, some of fashion's hottest designers will join together to raise awareness and funds in support of the students of Zareinu Educational Centre (a unique centre that provides educational and individualized therapies to children with special needs) at the highly anticipated eighth annual Zareinu Fashion Show.
Hosted by the legendary fashion journalist, author, designer and host of CTV's FASHIONTELEVISION Jeanne Beker, this year's show will feature Zareinu students strutting their stuff down the catwalk (in stunning fashions from designers Lil Vogue, Matooka, Devilish Angels and Jaytex by Ben Sherman) hand-in-hand with students from across the GTA to show acceptance between typical kids and those with special needs.
Taking cues from Hollywood's inspirational messages featured in new television shows and film that teach people of all ages to embrace our differences and that our disabilities don't define us, this night will focus on and celebrate the ways in which Zareinu students define themselves.
"My daughter, Julia, has Down syndrome. But that doesn't define her," says Ruth Zive, a mother on Zareinu's board of directors. "Julia is a friend, a sister, a dancer, a math enthusiast, a Justin Beiber fan and a Facebook expert. She is defined as a whole person with a range of interests, skills and talents, and events like this one provide a great forum to celebrate and showcase the definitive qualities of children with exceptionalities."
Along with children's wear designers there will be women's wear collections gracing the runway including fashions from Danier, Divine Decadence, EDIT by Jeanne Beker, Seventy and Shenkin West.
ABOUT ZAREINU:The Zareinu Educational Centre is a world-renowned treatment centre and school that provides individualized therapies and special education to children with a wide range of physical and developmental challenges.
Zareinu's outstanding team delivers innovative therapeutic interventions and programs to meet unique needs of children with disabilities, including Cerebral Palsy, Down Syndrome, Autism Spectrum Disorder, and other neurological and developmental impairments. Programs are available for children from birth to 18 years.
For more information, please visit www.zareinu.org.
Contextual consideration in interpreting contracts is not dependent on a finding that the words themselves suggest some ambiguity, but is an integral part of the interpretive process
Schneeberg v. Talon International Development Inc., 2011 ONCA 687, released today is another decision considering the context in which contracts arise as being relevant regardless of ambiguity in language:
[38] This court has set about explaining the approach to interpreting contracts in a number of recent decisions. In Dumbrell v. Regional Group of Companies Inc., 2007 ONCA 59, 85 O.R. (3d) 616, a case involving the interpretation of an employment agreement, Doherty J.A. offered the following approach, at para. 53:
The text of the written agreement must be read as a whole and in the context of the circumstances as they existed when the agreement was created. The circumstances include facts that were known or reasonably capable of being known by the parties when they entered into the written agreement: see BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12 at 23-24, H.W. Liebig & Co. v. Leading Investments Ltd., [1986] 1 S.C.R. 70 at 80-81, La Forest J.; Prenn v. Simmonds, [1971] 1 W.L.R. 1381 at 1383-84 (H.L.); Staughton, "How Do the Courts Interpret Commercial Contracts?", [(1998) 58 Cambridge L.J. 303], at 307-308.
[39] In his discussion of the applicable legal principles, at para. 54, Doherty J.A. highlights his view that this contextual consideration is not dependent on a finding that the words themselves suggest some ambiguity, but is an integral part of the interpretive process:
A consideration of the context in which the written agreement was made is an integral part of the interpretative process and is not something that is resorted to only where the words viewed in isolation suggest some ambiguity. To find ambiguity, one must come to certain conclusions as to the meaning of the words used. A conclusion as to the meaning of words used in a written contract can only be properly reached if the contract is considered in the context in which it was made: see McCamus, The Law of Contracts (Toronto: Irwin Law, 2005) at 710-11.
[40] Doherty J.A. acknowledged, at para. 55, that "[t]here is some controversy as to how expansively context should be examined for the purposes of contractual interpretation", but clarified that "[i]nsofar as written agreements are concerned, the context, or as it is sometimes called the 'factual matrix', clearly extends to the genesis of the agreement, its purpose, and the commercial context in which the agreement was made".
[41] In Commercial Alcohols Inc. v. Suncor Energy Products Inc., 2008 ONCA 261, 165 A.C.W.S. (3d) 448, at para. 33, Laskin J.A. specifically endorsed the Dumbrell approach to contractual interpretation in describing the process as follows:
The goal of contractual interpretation is to determine the intent of the parties when the contract was made. To do so, the court looks at the words the parties used and the context in which the contract was signed. Goudge J.A. concisely summarized the proper approach to contractual interpretation in his reasons in Kentucky Fried Chicken Canada v. Scott's Food Services Inc., [1998] O.J. No. 4368 at para. 25 (C.A.):
While the task of interpretation must begin with the words of the document and their ordinary meaning, the general context that gave birth to the document or its "factual matrix" will also provide the court with useful assistance.
See also a more extensive discussion of this approach by Doherty J.A. in Dumbrell v. Regional Group of Companies (2007), 85 O.R. (3d) 616 at paras. 47-56 (C.A.).
This approach has been relied on in many other post-Dumbrell decisions of this court: see Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, 85 O.R. (3d) 254; 3869130 Canada Inc. v. I.C.B. Distribution Inc., 2008 ONCA 396, 167 A.C.W.S. (3d) 82; RF Real Estate Inc. v. Rogers Telecom Holdings Inc., 2009 ONCA 899, 265 O.A.C. 329; Hawley v. North Shore Mercantile Group, 2009 ONCA 679, 255 O.A.C. 143; Zeubear Investments Ltd. v. Magi Seal Corp., 2010 ONCA 825, 103 O.R. (3d) 578; and SeaWorld Parks and Entertainment LLC v. Marineland of Canada Inc., 2011 ONCA 616.
[42] I find further support for this approach in the comment of Cromwell J. in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at para. 64, where he stated that a key principle of contractual interpretation "is that the words of one provision must not be read in isolation but should be considered in harmony with the rest of the contract and in light of its purpose and commercial context."
Monday, November 7, 2011
Syrian opposition declares city of Homs disaster area, 1-day death toll rises to 23 nationwide
Syria is Iran's best friend. Israel and Iran are in a war of nerves. Syria is close to civil war (maybe there already). Interesting times ahead:
http://wapo.st/u43muD
BEIRUT — A key Syrian opposition group appealed Monday for international intervention to protect civilians in a besieged central city as security forces shot dead one person, raising the death toll from the latest government offensive in Homs to 17, activists said.
Activists said Monday that 23 people were killed across Syria a day earlier, including at least 16 people in and around Homs, which has experienced a fierce assault by government troops over the past five days.
http://wapo.st/u43muD
BEIRUT — A key Syrian opposition group appealed Monday for international intervention to protect civilians in a besieged central city as security forces shot dead one person, raising the death toll from the latest government offensive in Homs to 17, activists said.
Activists said Monday that 23 people were killed across Syria a day earlier, including at least 16 people in and around Homs, which has experienced a fierce assault by government troops over the past five days.
Sunday, November 6, 2011
Liberal Town Hall: we are over the time of a small group from the Centre running everything
Bob Rae is holding a remarkable town hall tonight. The callers are clearly not prescreened and the poll questions were real. Difficult and harsh questions were put to the town hall; Bob did a yeomanlike job but there was no holding back on the calls. Such a town hall says we are over the time of a small group from the Centre running everything; the members are not going to accept the old ways. Good for Bob!!! Wow!!!
Eid Mubarak!
On this religious holiday, Muslims around will commemorate Abraham's trials and tribulations with their own sacrifices and acts of charity.
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