Friday, June 29, 2012

Video: Zimmerman Prosecutor Stands His Ground

Bearing an uncanny resemblance to Dr. Phil, Florida State prosecutor Bernie de la Rionda argues against bail for accused killer, George Zimmerman:
- Garry J. Wise, Toronto

140Law - Legal Headlines for Friday, June 29, 2012

Here are the leading legal headlines from Wise Law on Twitter for Friday, June 29, 2012:
- Rachel Spence, Law Clerk

Movin' to Canada

... to escape socialist Obamacare.

Or as the indispensible Wonkette put it:
Anti-psychotic medications paid for by Obamacare: priceless.
- Garry J. Wise, Toronto

Tax or Mandate? John Roberts As the Decider

On the farce that was yesterday's US Supreme Court ruling that narrowly preserved the Obama health care plan, Salon writer and University of Colorada law professor Paul Campos gets it entirely right:
Today, John Roberts got to decide what sort of healthcare system the United States should have. It would be difficult to explain to someone not familiar with the American legal-political system why this isn’t a crazy way to decide such an issue, for the very good reason that it is crazy when you think about it, which is why most people don’t. 
...Roberts has this extraordinary degree of power because our political process remains committed to an absurd system of judicial review, in which someone like Roberts gets to “interpret” an unavoidably ambiguous 220-year-old document, written at a time and place that had less in common with America in 2012 than it did with England in 1500. Under such interpretive conditions, it’s inevitable that “the Constitution” ends up meaning pretty much what John Roberts thinks it ought to mean.
What's In a Name?

So let me get this straight - if you call it a mandate, it's an illegal, devious federal overreach of Marxian proportions, and must be struck. But if you call it a tax, then its perfectly fine. This is because while governments can impose taxes, they aren't allowed to require Americans to purchase products from  private enterprise on threat of penalty.  Unless the government that does the requiring is a state government, as in the case of mandatory auto insurance, which is the law in 47 US states.  Now, in America, when state governments legislate such mandates, it's fine.  But when the feds do it, it's the leading edge of tyranny or worse - socialism.  Unless you call it a tax.  Because then it's legal. 

Fortunately, for the more than 50 million Americans without health insurance, John Roberts says its a tax

We can all breathe easier now. 

(Until some pretentious hack with a law degree and an agenda proposes to re-litigate questions about whether it's the kind of tax that the Constitution authorizes, that is).
- Garry J. Wise, Toronto

Wednesday, June 27, 2012

Federal Court Rules That Gay Widow Is Entitled to Estate Tax Refund

Finding that the Defense of Marriage Act's (DOMA's) denial of equal benefits to same-sex couples violates the Equal Protection Clause of the Fifth Amendment, a federal court judge has awarded the surviving spouse of a lesbian couple reimbursement for the tax bill she paid on her wife's estate.

Edith Windsor and Thea Spyer became engaged in 1967 and were married in Canada in 2007, although they lived in New York City. Ordinarily, spouses can leave any amount of property to their spouses free of federal estate tax. But when Ms. Spyer died in 2009, Ms. Windsor, now 82, had to pay Ms Spyer's estate tax bill because of DOMA, a 1996 law that denies federal recognition of gay marriages.

Although New York State considered the couple married, the federal government did not and taxed Ms. Syper's estate as though the two were not married. Ms. Windsor sued the U.S. government seeking to have DOMA declared unconstitutional and asking for a refund of the more than $350,000 in estate taxes she was forced to pay.

Federal court judge Barbara Jones from the U.S. District Court for the Southern District of New York ruled that there was no rational basis for DOMA's prohibition on recognizing same-sex marriages. Jones stated that it was unclear how DOMA preserves traditional marriage, which is one of the stated purposes of the law.

As ElderLawAnswers reported last year, President Obama decided to stop defending DOMA, so members of Congress formed an advisory group to defend the law. This is the fifth case to strike down DOMA.

To read the court’s decision, click here.

(Reprinted with the permission of ElderLawAnswers)

140Law - Legal Headlines for Wednesday, June 27, 2012

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, June 27, 2012:
  • War on drugs 'unsustainable,' ex-justice Louise Arbour says
  • Unified Family Court's 35th Anniversary - Court model started in Hamilton 
  • Antonin Scalia, ranting old man (Paul Campos/Salon)
  • Federal judge blocks Florida law barring contracts for business tied to Cuba, Syria 
  • Judge to testify at Manitoba inquiry into sex scandal - Justice Lori Douglas hearing to begin July 14 
  • Probe Into Madam Justice Lori Douglas Gets Underway
  • Court: Rape victim can sue after being arrested and denied contraception 
  • Germany court criminalizes circumcision of minors
  • The White House's blemished record of disclosure on Bush-era torture 
  • Obama prepping thousands of lawyers for election (Associated Press) 
  • SCOTUS to rule on military lying (Stephanie Gaskell/Politico)
  • Ontario court awards punitive damages against insurer
  • Man charged with assault and battery with a dangerous weapon - McDonald's fries 
  • CIBC, Scotiabank overtime class action suits can proceed: court - Globe and Mail 
  • Court ruling certifying class actions vs banks on unpaid overtime not expected to spark deluge of cases 
  • - Rachel Spence, Law Clerk

    Sunday, June 24, 2012

    Ontario Employment Law: Contractual Entitlement to Notice and the Question of Mitigation

    In Bowes v. Goss Power Products Ltd., decided May 25, 2012, the Court of Appeal for Ontario was faced with an interesting question of law:

    Is an employee, who is terminated without cause, required to mitigate his or her loss when entitled to a fix term of notice or pay in lieu of notice?

    In the case, the employee, Peter Bowes had entered into a written contract of employment with Goss Power Products Ltd, which provided that he would receive six months' notice or pay in lieu thereof if his employment was terminated without case. The contract was silent as to any duty on his part to mitigate his damages in the event of a termination without cause. As it happened, only two weeks following the date of termination, Mr. Bowes was lucky enough to secure comparable employment at the same salary he had been earning with Goss.  

    The employer took the position that even though the contract was silent as to any obligation on Mr. Bowes to mitigate his damages, he had an implied obligation to do so and had effectively mitigated most of his damages by obtaining this new position. Therefore, the employer argued it did not have to pay Mr. Bowes anymore than

    In answering "no" to the question set out above, the Court noted that a contractually fixed term of notice is distinguishable from common law reasonable notice where a duty to mitigate is an implied term of the employment relationship. In this regard, Winkler C.J.O. stated:
    When parties contract for a specified period of notice or pay in lieu thereof they are choosing to opt out of the common law approach applied in Bardal. In doing so, the parties should not be take as simply attempting to replicate common law reasonable notice.
    Winkler C.J.O. continued:
    In my view, there is nothing unfair about requiring employers to be explicit if they intend to require an employee to mitigate what would otherwise be fixed or liquidated damages. In fact, what is unfair is for an employer to agree upon a fixed amount of damages, and then, at the point of dismissal, inform the employee that future earnings will be deducted from the fixed amount. 
    This decision illustrates that where a contract specifies the period of notice, or pay in lieu thereof, which an employee will be entitled upon a termination on a without cause basis, courts will not presume a term requiring the dismissed employee to mitigate its damages.

    If you believe that you have been wrongfully dismissed, please contact a lawyer who can advise you as to your rights and entitlements.

    - Robert Tanha, Toronto

    Friday, June 22, 2012

    $500,000 Found in House Walls Belongs to Estate, Not Homeowners

    You buy a dilapidated house and in the course of renovations you find a huge amount of money hidden in the walls.  The cash is yours, right?  Not according to an Arizona appeals court, which recently ruled that $500,000 found in the walls of a house belongs to the heirs of the man who put it there, not to the house’s current owners. 

    Robert A. Spann had a habit of hiding cash and other valuables in unusual places in the homes he lived in.  His two daughters knew of his pattern, and for seven years after he died in 2001 they found stocks and bonds, as well as hundreds of military-style green ammunition cans, some of which contained gold or cash, hidden throughout his Paradise Valley, Arizona, home.

    In 2008, the daughters sold the rundown house “as is” to a couple.  The couple did some remodeling, in the course of which a worker for the contracting company found two ammunition cans full of cash in the kitchen wall and another two inside the framing of an upstairs bathroom. The cash totaled $500,000.  After the worker reported the find to his boss, the boss took the cans but did not tell the couple who owned the house about them. The worker, however, eventually informed the couple of the discovery and the police ultimately took control of the $500,000.

    The couple and the contractor sued each other for the money.  In the meantime, Robert Spann’s daughter Karen Grande, who was the personal representative of his estate, filed a petition in probate court on behalf of the estate to recover the money. The two cases were consolidated in June 2009.

    The trial court ruled that the money belonged to the estate and the couple appealed, claiming that Mr. Spann’s family had abandoned the cash by leaving it in the house when it was sold “as is.”  

    In a May 31, 2012, ruling, the Court of Appeals of Arizona agrees with the trial court.  The court rules that while “finders keepers” may work on the schoolyard, in Arizona in order to abandon personal property, “one must voluntarily and intentionally give up a known right.” The court finds that because there is no evidence that Mr. Spann’s estate intended to relinquish any valuable items in the house, the money is more properly characterized as “mislaid” and still belongs to the estate.

    To read the full text of the Arizona appeals court’s decision in the case, Grande v. Jenningsclick here.

    Interestingly, an Oregon appeals court came to a different conclusion in a very similar case four years ago.  For details, click here

    (Reprinted with the permission of

    140Law - Legal Headlines for Friday, June 22, 2012

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    - Rachel Spence, Law Clerk

    Wednesday, June 20, 2012

    A Letter of Instruction Can Spare Your Heirs Great Stress

    While it is important to have an updated estate plan, there is a lot of information that your heirs should know that doesn't necessarily fit into a will, trust or other components of an estate plan. The solution is a letter of instruction, which can provide your heirs with guidance if you die or become incapacitated.

    A letter of instruction is a legally non-binding document that gives your heirs information crucial to helping them tie up your affairs. Without such a letter, it can be easy for heirs to miss important items or become overwhelmed trying to sort through all the documents you left behind.

    The following are some items that can be included in a letter:
    • A list of people to contact when you die and a list of beneficiaries of your estate plan
    • The location of important documents, such as your will, insurance policies, financial statements, deeds, and birth certificate
    • A list of assets, such as bank accounts, investment accounts, insurance policies, real estate holdings, and military benefits
    • Passwords and PIN numbers for online accounts
    • The location of any safe deposit boxes
    • A list of contact information for lawyers, financial planners, brokers, tax preparers, and insurance agents
    • A list of credit card accounts and other debts
    • A list of organizations that you belong to that should be notified in the event of your death (for example, professional organizations or boards)
    • Instructions for a funeral or memorial service
    • Instructions for distribution of sentimental personal items
    • A personal message to family members
    Once the letter is written, be sure to store it in an easily accessible place and to tell your family about it. You should check it once a year to make sure it stays up-to-date.

    (Reprinted with the permission of ElderLawAnswers)

    140Law - Legal Headlines for Wednesday, June 20, 2012

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    - Rachel Spence, Law Clerk

    Tuesday, June 19, 2012

    Will Microsoft's Surface be the Tablet for Lawyers?

    Though I'm a long-time Windows user, I've certainly done my best over the last couple of years to warm up to Apple's clearly superior mobile and tablet products.

    To be sure, though,  I haven't quite succeeded.  Subconsciously, I keep asking myself the same nagging question: "Why can't I do all the stuff on my iPad that I've been doing for almost twenty years on my PC?

    On this fundamental question, Microsoft's new Surface tablet could be a game-changer.

    We'll see - but if, as promised, it actually will be able to seamlessly run all Windows-based software, I expect to be near the very front of a long line of lawyers clamoring to acquire this new, strangely innovative product that merely lets us do all the things we've always been able to do, the way we know how to do them.

    One can only hope.

    For more reading, see: Why Microsoft's Surface Tablet Shames the PC Industry

    - Garry J. Wise, Toronto

    The Steroid Trials

    Can we all agree that going after athletes that use steroids is a huge waste of time and money?

    Yes, I believe we can.
    - Garry J. Wise, Toronto

    Solutions? Bigger Anti-Smoking Warnings?

    I'm a smoker, but I'll say this anyway.

    If the government is genuinely serious about limiting tobacco-related harm, try this on for a concept:

    Just do it - ban the sale of cigarettes and tobacco products in Canada.

    Don't enact silly,  feels-good, looks-awful measures like legislating larger anti-smoking warnings on cigarette packs.

    Be prepared to lose our abundant tax revenues from the sale of tobacco products, and do what the scientific and medical evidence overwhelmingly suggests.

    Tobacco is a dangerous product.  Ban it.

    (You'd probably be doing me a favour).
    - Garry J. Wise, Toronto

    140Law - Legal Headlines for Tuesday, June 19, 2012

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    - Rachel Spence, Law Clerk

    Sunday, June 17, 2012

    Video: Using Social Media for Change

    A daring social media campaign changes the conversation - and according to this video, helps win a ballot initiative by a landslide:

    - Garry J. Wise, Toronto

    Thursday, June 14, 2012