An interesting thought on statutory limitation

I’ve often thought there out to be a quota on the size of a state’s entire statutory code. Something on the order of 10-20 million characters. This would include not only the laws, but any rule or regulation created by any state agency (often published in something called an Administrative Code).

Those laws and rules would only get to be so large, and then, before anything new was added, they’d have to get rid of something else. The legislature would also be responsible for figuring out each agency’s “budget”, that is, how many characters that agency could use for its rules.

If this were in effect, maybe they’d keep only what was really important.

Commenter "Ahcuah" at theagitator.com, an American libertarian website, January 2nd, 2010

Sanity on Social Policy

"I don't believe that suffering is morally edifying. I'm in favor of more happiness and less suffering wherever possible, which is apparently a radical position."

"KevinBaker", Shakesville, comments, h/t to "The Real Interrobang"

What is believed?

"People who would not believe a High Priest if he said the sky was blue, and was able to produce signed affidavits to this effect from his white-haired old mother and three Vestal Virgins, would trust just about anything whispered darkly behind their hand by a complete stranger in a pub."

Terry Pratchett, from the novel Maskerade.

The wisdom of crowds can be overrated.

"The IQ of a mob is the IQ of its most stupid member divided by the number of mobsters."

Terry Pratchett, from the novel Maskerade.

Separation Agreements: Full Disclosure and Fair Dealing

The Supreme Court of Canada in Rick v. Brandsema has recently clarified the law regarding what is and isn't fair in the negotiation and contents of a separation agreement.

The SCC headnote found at Canlii gives an excellent summary (the numbers in square brackets being the relevant paragraph of the SCC judgment; the hyperlinks are by the author of this blog):

The parties married in 1973 and separated in 2000. During their 29 years together, they had five children and acquired a dairy farm in which they were equal shareholders, as well as other real property, vehicles and RRSPs. The parties were intermittently represented by lawyers and also used the services of mediators during their negotiation of a separation agreement. Approximately a year after their divorce, the wife sought to set aside the agreement on the grounds of unconscionability or, in the alternative, a reapportionment order under s. 65 of British Columbia’s Family Relations Act.

The trial judge found that the agreement was unconscionable because the husband had exploited the wife’s mental instability during negotiations and had deliberately concealed or under‑valued assets. This resulted in the wife receiving significantly less than her entitlement under the Act, despite the fact that it was the parties’ express intention to divide their assets equally. As a result, the trial judge made an order awarding the wife an amount representing the difference between the negotiated equalization payment and the amount she was entitled to under the Act. The Court of Appeal disagreed with the trial judge’s conclusions about the extent of the wife’s vulnerabilities and concluded that, in any event, they were effectively compensated for by the availability of counsel. [The wife appealed that BCCA decision to the Supreme Court of Canada and won.]

[...]
The singularly emotional environment that follows the disintegration of a spousal relationship means that the negotiation of separation agreements takes place in a uniquely difficult and vulnerable context. Special care must therefore be taken to ensure that the assets of the former relationship are distributed through a process that is, to the extent possible, free from informational and psychological exploitation. Where exploitation results in an agreement that deviates substantially from the objectives of the governing legislation, the resulting agreement may be found to be unconscionable and, as a result, unenforceable. [1] [44] [47]

While parties are generally free to decide for themselves what bargain they are prepared to make, decisions about what constitutes an acceptable settlement can only authoritatively be made if both parties come to the negotiating table with the information they need to consider what concessions to accept or offer. This requires that there be a duty on separating spouses to provide full and honest disclosure of all relevant financial information in order to help protect the integrity of the negotiating process. This duty not only anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain, it helps ensure the finality of agreements. An agreement negotiated with full and honest disclosure and without exploitative tactics will likely survive judicial scrutiny. [45‑49]

Whether defective disclosure will justify judicial intervention, however, will depend on the circumstances of each case, including the extent of the misinformation and the degree to which it may have been deliberately generated. [49]

There is no reason to disturb the trial judge’s conclusion that the separation agreement was unconscionable. His findings about the husband’s defective disclosure and exploitation of his wife’s known mental vulnerabilities, support the conclusion. Although in some cases professional assistance will effectively compensate for vulnerabilities, in this case the trial judge concluded that the wife’s mental instability left her unable to make use of such assistance. [2] [6] [27-28] [31] [36] [58‑60] [62]

The husband’s failure to make full and honest disclosure, his knowledge that the negotiations were based on erroneous financial information, as well as his exploitation of what he knew to be his wife’s profound mental instability, resulted in a negotiated equalization payment that was $649,680 less than the wife’s entitlement under the Family Relations Act. In these circumstances, the trial judge was entitled to award this amount to compensate the wife for the loss caused by the unconscionable bargain. [6] [27-28] [31] [53] [63] [69]

The Canadian Centre for Policy Alternatives Weighs looks at the HST

The Canadian Centre for Policy Alternatives is "an independent, non-partisan research institute concerned with issues of social, economic environmental justice. Founded in 1980, the CCPA is one of Canada’s leading progressive voices in public policy debates".

CCPA recently examined the recently-approved Harmonized Sales Tax (HST)and concludes that the "majority of Ontarians won’t be worse off when the [HST] is implemented. Not A Tax Grab After All: A Second Look at Ontario’s HST examines the Ontario government’s HST plan and finds it's virtually revenue neutral when viewed as part of a total tax package that includes increased sales and property tax credits and a significant decrease in personal income tax rates".

To read CCPA's full paper in PDF format you can right-click and download it from here.

Other Camberwell House posts with further information on the HST:
"The HST and you"
"HST Transitional Rules"

Quantum Meruit

“Quantum meruit” is Latin for “as much as he deserves”. It refers to how the court determines what a party is owed for work done for another in one of two main cases: where there is no contract (and thus an unjust enrichment case) or where there is a contract but there are no express terms governing payment, (which can be an oral contract, or a written contract which is silent or unclear as to payment). If the right to payment is established by the court then, “in such circumstances, the Courts award reasonable remuneration to the person who has rendered the services”, [Dictionary of Canadian Law, (3d ed.)].

It is important that the rendering of services by one person to another has to be to one who has requested such services “or freely accepted them with the knowledge that they are not rendered gratuitously." [Gill v. Grant (1988), 30 E.T.R. 255 at 271 (B.C.S.C.) per Rowles J.] The rationale for this two-way-street is obvious: one should not be forced by a court to pay for services which one had neither requested nor knowingly accepted.

A very neat summary of what must be present to win a claim based soley on quantum meruit are found in Summers v. Harrower, 2005 CanLII 50261 (Ont S.C.J.), ¶ 11:

1. there was a contractual relationship between the parties;
2. the parties agreed that certain work was to be done but failed to agree on all aspects of the contract, for example, the price to be paid;
3. the defendant accepted the work;
4. both parties had or should have had in the circumstances an expectation that the work was not being rendered gratuitously; and
5. the payment sought was reasonable remuneration for the work done.

Quantum meruit is a very useful principle of law, permitting recovery of funds where there is inadequate documentation but evidence of the agreement and the work done.

Latin and the law

This post started as an entry on the principle of quantum meruit, but the phrase itself got me to thinking about Latin words in the law. (The post on quantum meruit will have to wait until here.)

There was a time when reading law was an exercise in plowing through the classical educations of the British lawyers of a different era, a kind of penance paid by the rest of us for the sins of the teachers of countless generations of public school boys vigorously beaten into translations of the classics. Such educations produced a weird result where anything important had to be in Latin because, well, Latin was how educated people said important things and that was that. It also helped that such a forest of Latin stood as a code or in-language for the ruling classes which often excluded the entrepreneurial middle classes and definitely placed a comprehension barrier between the lower classes and their understanding of the net of laws that so severely and unfairly bound them. It's still surprising to realize that the study of English among Britain's educated classes was, until well into the 20th Century, often reserved for those children of privilege considered too slow for Latin and Greek. How idiotic such a fetishization of past millenia was is shown by the fact that Winston Churchill was shunted off into the study of English at Harrow because he was considered too dim for the classics. (The lad was once beaten when, told that a certain sentence construction would be used when addressing a table, blurted out, "but I never do!". Fortunately this early immersion in English eventually turned out to be for our societal benefit.)

Over the years Latin has, thankfully, largely dropped from frequent use in the law. Generations of lawyers have grown up without ever having picked up a Latin primer and I have a sneaking suspicion that the drop in the study of the classics is linked at least in important part to the end of corporal punishment in the schools: kids -- me, for one! -- probably have to be threatened with violence to waste time learning the endless, oppressive complexities of Latin grammar, an educational point recognized by the lads of Monty Python in this classic Life of Brian scene.

Reading a judicial decision from eighty years ago is an exercise in frustration, blocked as one is at every turn by a barbed wire tangle of Latin phrases which have perfectly acceptable English equivalents. Modern decisions are mercifully free of Latin, save where the term in question has become a term of art which is generally and instantly understood by lawyers to denote a specific thing, a word or phrase which one treats as an English word by adoption, like (non-legal) but instantly-comprehended words "blitzkreig", "bungalow" or "fait accompli". The law is better off for it.

Unjust Enrichment

Unjust enrichment is a doctrine for the compensation of one who has unjustly received a benefit from another in a manner that the law will correct. It is a principle of “equity”.

Thomson-Carswell’s Dictionary of Canadian Law (3d ed) neatly summarizes the doctrine:

“ An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment; (2) a corresponding deprivation; and (3) the absence of a juristic reason for the enrichment.”

Each of these is required for the doctrine to be applied. Only when they are proven is the action established and the court able to grant compensation; from there the court goes on to determine what remedy will be applied: monetary compensation or a judgment finding a “constructive trust” which will result in an order that the claimant has an interest in or title to property.

An example of unjust enrichment would be two companies working together without a written contract on a building project where Company A owns the land and Company B contributes labour and building supplies. Co.A refuses to pay Co.B, so where is B’s remedy? It can allege an oral contract, yes. But it can also allege that Co.A is unjustly enriched. Co.A has been enriched to the value of the contributions in labour and supplies and through any increase in the value of the property. Co.B has suffered a corresponding deprivation, in that it has lost those contributions and the profit (the increase in value) which would have been provided if those contributions had been used elsewhere. Lastly, there is no juristic reason for what happened. If, for example, Co.A had been owed $1m by Co.B and B’s deprivation was roughly the same, Co.A could claim a set-off for that debt, which could be a juristic reason which may be upheld by the court.

For further reading and a discussion of the principle, please see the Duhaime page on unjust enrichment.

Thinking clearly on the accused

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

Thomas Paine

Varying a custody access order: When you can and when you can't

Is there a situation where parties are blocked from seeking variation of a custody or access order? Yes. Elizabeth Ramsden in LAO LAW’s The Bottom Line: A weekly summary of new cases in family law (November 11, 2009) summarizes this issue:

Even where both parties request a variation of a custody or access order, the court is without jurisdiction to vary the order unless it makes an explicit finding of a material change in circumstances since the previous order was made. A material change is one that:
(1) amounts to a change in the condition, means, needs or circumstances of the child and/or the parents’ ability to meet the child’s needs;
(2) materially affects the child; and
(3) was either not foreseen or could not have been reasonably contemplated by the judge who made the original order.
If an applicant fails to meet this threshold requirement, the inquiry can go no further: Persaud v. Garcia-Persaud, 2009 ONCA 782 (Laskin, Gillese and Juriansz JJ.A.), ¶ 4, [citing see Gordon v. Goertz, [1996] 2 S.C.R. 27, at ¶ 13 and Litman v. Sherman (2008), 52 R.F.L. (6th) 239 (Ont. C.A.)].

As the Court of Appeal noted, "[t]he matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation." [Emphasis added.]

The Court went on to note that where there is “significant conflict in the affidavit evidence of the parties … a variation motion cannot be properly determined on affidavit material. … [R]esolution of conflicting evidence on critical matters requires a trial of the issues, in which viva voce evidence is called. See this court’s decision in Schnarr v. Schnarr (2006), 22 R.F.L. (6th) 52”.

Living Wills: The Centre for Bioethics

The University of Toronto Joint Centre for Bioethics maintains a website with information, education and precedent materials on living wills. The website provides living will information for general living wills, cancer living wills and HIV living wills. Registration and sign-in (triggering a disclaimer) is required to view or download these precedents.

The necessary virtue of proof-reading

I spoke earlier today with a networking colleague who drew my attention to a letter she had received from one of her suppliers, expressing pleasure that their firm was once again my colleague's choice for her "hoe based business".

That missing M makes a lot of difference, doesn't it? Double check your outgoing letters!

Some essential sources for directors of non-profits

Building a new not-for-profit organization: How to approach risk management. (HTML)
Paulette VinetteBy Paulette Vinette, CAE

Organization and Management of Nonprofits.
Charity Village (assorted authors)

Governance DO'S & DON'TS: Lessons from Case Studies on Twenty Canadian Non-profits. (PDF)
Mel Gill

Primer for Directors of Not for Profit Corporations (online HTML version).
Primer for Directors of Not for Profit Corporations (PDF version).
Co-ordinating Editor: Peter Broder. Text Editor: Norah McClintock. Contributors: Wayne Amundson; Jane Burke-Robertson; Terrance Carter; Jacqueline Connor; Paul Martel; David Stevens.

Precision often annoys people

Lawyers often get taken to task for our attention to detail and our precision with words. It's occasionally very vexing: nobody complains when a surgeon puts the knife in exactly the right spot, or feels hard done by when their contractor's woodwork meets just where it should. However, a lawyer often seems taken to task for getting our words Just So; it's seen as, well, sharp in the unpleasant sense of the word. You take the bad with the good in a job like this, but it's always a little comforting when somebody "gets it" so it was fun to come across this quote:

“It requires as much caution to tell the truth as to conceal it.”

Baltasar Gracian

HST Transitional Rules

"The 2009 Ontario Budget proposed a comprehensive package of tax changes. Central to this tax package is the proposed Harmonized Sales Tax for Ontario (HST), which, subject to legislative approval, would come into effect on July 1, 2010.

"This Notice provides details of proposed measures that would build on Ontario’s comprehensive tax package and help consumers and businesses transition to the HST.

"The Notice provides general descriptions of transitional rules for the HST that will be proposed to be enacted in the federal Excise Tax Act (ETA). It also provides general descriptions of provincial measures that will be proposed to be enacted to wind down the applicable provisions of the Ontario Retail Sales Tax Act (RSTA)."

For further information please see the Ontario Ministry of Revenue page on the HST at:
http://www.rev.gov.on.ca/en/taxchange/index.html

This PDF is available for download here.

HST Transitional Rules

The HST and you

I recently attended a seminar on the new HST at this year's Bridges to Better Business event. The talk, given by a cheerful and helpful Mr. Jeremy Bertrand of the Ontario Ministry of Revenue, was very valuable, hitting many of the key questions we have about the new harmonized sales tax which is replacing the old provincial sale tax (PST).

Mr. Bertrand was kind enough to send me a PDF of his PowerPoint presentation ... and you can download it by right-clicking here.

I will be posting on some key points from that presentation later in this week.

For those of you who would prefer to read it online, here is the same presentation uploaded to ScribD. My thanks go to Mr. Jeremy Bertrand for the Ministry's permission to upload this to the Camberwell House site in furtherance of their goal of educating businesses about the new tax.

Ontario Min Rev HST FINAL 2009 09-Dms

Watch out for the Limitations Act

Where you suffer a loss and claim against your insurance, beware of the Limitations Act, 2002. It is not unheard of (!) for an insurance company to drag things. In such cases the insured thinks that the insurance company is "handling it". Unfortunately the insurer is -- whether accidentally or deliberately -- exploiting the belief of the insured that the insurance company is acting in good faith. The insured may, down the road, face a very unpleasant situation when a demand for the long-delayed payment is met by the insurance company denying the claim by pointing to the passage of the limitation period. (Note: The relevant section is reproduced at the bottom of this post.)

There are arguments in law which might defeat the insurance company's reliance on the Act in such cases but law must often defer to practicality: a client may not be able to contest the claim because any action to challenge the insurance company's position would have cost many times the amount due under the policy. The result? An insurance company pockets a tidy little profit by saying "you're too late!" to a claimant on a claim that they themselves have delayed. An individual or small business person should consider this very deeply and never forget it if they need to make an insurance claim. Whether the insurance company does this on purpose or merely benefits from its own incompetence is beside the point: they can and might do this to you too.

What can you do to avoid being scammed this way?

1. On any insured matter please remember that the two-year clock starts running as of the date of the damage.

2. Diarize, diarize, diarize. Mark off the six, twelve and fifteen month periods since the date of the claim, and follow up on those days.

3. Do everything in writing, preferably by email or fax. It is difficult for an insurer to take the position in court that they hadn't received a document ("we couldn't process the claim without it and they didn't send it to us so they have no case") if you can prove that they received it. (And please don't kid yourself: whether by accident or design any large organization will "lose" materials or information which help you and hurt them. Anybody who has dealt with a cable or cell phone company for example knows of this: somehow their promises to you rarely seem to make it onto your file!)

4. Watch out for sneaky handoffs. Large organizations of all kinds have learned that they can delay provision of service indefinitely if they keep you uncertain and confused over who really has responsibility for your file.

5. If they have not paid out by your fifteen month point, consult and, if necessary, retain counsel. Have the lawyer put the insurer on notice that failure to pay by a given date will result in a court action.

6. Don't bluff. Sue if necessary to preserve your rights. Once that two-year period has gone by your rights have largely disappeared.

An extract from the Limitations Act showing the basic two-year period:

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered....

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)...

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved....

Demand obligations

(3) For the purposes of subclause (1) (a) (i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made. ...

Same

(4) Subsection (3) applies in respect of every demand obligation created on or after January 1, 2004. ...

A Beginner`s Guide to Wills and Estates

From a presentation given recently:
Wills Estates Presentation 20090611

To see this full page, please click on "Wills Estates Presentation 20090611" above the document, or click here.

Every Litigator Believes This ... And Rightly So

Anybody seen the Malcolm Gladwell article in the New Yorker about how David beats Goliath? Everybody knows the part about the sling shot and the smooth stones but the fight starts with David on offense. He runs right at Goliath who is just standing there, gaping, shocked out of his wits that this kid is actually running right at him!! If you want to beat the the bastards, you gotta go on the offensive, stay on the offensive and when they're down, stomp on them. Acting like a weenie gets you nowhere. Goliath eats weenies for lunch.

Commenter "arcadesproject" at Hullabaloo, courtesy of "The Real Interrobang".