January 21, 2014
Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.—Benjamin Franklin, in a letter to Jean-Baptiste Leroy, 1789
Ben Franklin was right about taxes, but death? Not so much.
When I blogged about the fate of Javad Heydary a couple of months ago, the Law Society of Upper Canada was 100% sure the body repatriated to Canada from Heydary’s native Iran was, in fact, his.
As far the LSUC is concerned, he was dead, really dead:
Now the LSUC is not so sure. According to Rachel Mendleson of the Toronto Star:
More than a month after a funeral was held for Javad Heydary, the case surrounding the embattled Toronto lawyer and his boutique firms is still being held up by a nagging question: Is he really dead?
A much-anticipated report by the Law Society of Upper Canada, presented in Ontario Superior Court on Monday, offers a glimpse into how more than $3 million belonging to a Mississauga couple was siphoned out of Heydary Hamilton’s trust account.
However, the status of the lawyer at the centre of the scandal remains somewhat less clear. Although the regulator’s directory lists the lawyer as “deceased,” the manager of trustee services told the court the body repatriated from Iran in December “was difficult to identify with 100 per cent certainty.”
To add further confusion, according to the Toronto Star report:
Margaret Cowtan said three “relatively independent individuals” identified the remains, and provided affidavits to the law society following the funeral service and burial in Richmond Hill.
“All indicated to some degree or another that the body belonged to (Heydary),” she told the court.
However, Cowtan said they could not be certain “because the body had not been embalmed in a manner consistent with North America.”
Heydary, 49, was best known for the lawsuit he launched on behalf of investors in the Trump International Hotel & Tower.
The law society received word in mid-December that his body had been repatriated from his native Iran, where he had reportedly fled amid allegations of missing money.
When asked why more scientific means were not used to identify the body, Cowtan told the Star the regulator “does not have the power to declare people dead or alive or obtain DNA evidence.” [emphasis added]
I suppose the LSUC didn’t bother to consult the Office of the Chief Coroner for advice on behalf of Heydary’s former clients before declaring that Heydary was deceased.
Of course, you can just Google it next time: What if a loved one dies outside of Canada?
Mark Twain famously once said: ” “The report of my death was an exaggeration”. Perhaps Heydary may yet appear and utter: “The report of my near death was an experience.”
From the sublime to the ridiculous. This entire Heydary saga is devolving into this famous Monty Python And The Holy Grail skit:
January 20, 2014
The Honourable Mr. Justice Todd L Archibald (Ontario Superior Court of Justice and Osgoode Hall Law School – York University) Kenneth E. Jull (Baker & McKenzie) and Kent Roach (University of Toronto – Faculty of Law) have posted “Corporate Criminal Liability: Myriad Complexity in the Scope of Senior Officer” , 2013 50(3) Criminal Law Quarterly. Here is the abstract:
The authors of this article argue that the Canadian model for corporate criminal liability is one that ought to be studied by other jurisdictions as an efficient model that strikes the right balance between the previous “directing mind” doctrine and the vicarious liability model that is utilized in the United States. This article reviews the recent cases of Global Fuels and Metron as case studies of how this model works.
Global Fuels was convicted of price fixing where a regional manager participated in collusion and let territory managers participate in collusion with his knowledge without interference. In the context of criminal negligence, the Ontario Court of Appeal in the case of Metron Construction has affirmed that the actions of an independent agent who manages an important aspect of a corporations’ activities and qualifies as a senior officer may result in a conviction of that corporation for criminal negligence causing death where the agent demonstrates a marked and substantial departure from the standard that could be expected of a reasonably prudent person. Companies must now be fully aware of the reality that the scope of what constitutes a “senior officer” has been significantly broadened. The result is that potential criminal corporate liability has been dramatically increased.
Corporate compliance must operate on myriad levels of complexity. At the senior officer level, compliance systems must recognize the wider ambit of persons who qualify as senior officers, including agents and contractors who manage an important aspect of the organization’s activities. New compliance programs in leadership, training, monitoring and auditing must be specifically designed for the new classes of senior officers at both policy and operational levels. A different level of compliance programme must also be developed for the spheres under the supervision of senior officers; at this level, the taking of reasonable measures may qualify as a defence.
A major advantage of the Canadian model is that it encourages and rewards corporate compliance by recognizing defences based on reasonable measures taken by senior officers with respect to those sectors under their supervision.
Download a copy of he article via SSRN here.
January 16, 2014
I’ll be speaking at the upcoming Ontario Bar Association Institute 2014, “Internationalizing Commercial Contracts” program and have prepared a paper entitled “Recognition and Enforcement of Foreign Judgments in Canada”. Here’s the abstract:
This paper provides an overview of the governing conflict of laws principles for the recognition or enforcement of foreign judgments, including an analysis of the recent Court of Appeal for Ontario decision in Yaiguaje et al. v. Chevron Corporation et al. and its implications for the recognition and enforcement of foreign judgments, generally. The issue of state immunity as an obstacle to foreign judgment enforcement is also considered.
A copy of the paper is available on SSRN here.
January 16, 2014
Tanya J. Monestier (Roger Williams University School of Law) has published “Jurisdiction and the Enforcement of Foreign Judgments”, The Advocates’ Quarterly, Vol. 42, p. 107, 2013/ Roger Williams Univ. Legal Studies Paper No. 143. Here’s the abstract:
In April 2012, the Supreme Court of Canada released its decision in what has become the pivotal case on personal jurisdiction in Canada, Van Breda v. Club Resorts Ltd. In Van Breda, the Court laid out a new framework for, and defined more precisely the content of, the “real and substantial connection” test that governs the assertion of jurisdiction over ex juris defendants. Specifically, the Court created four presumptive connecting factors that courts are to use in jurisdictional determinations. The presumptive connecting factors approach to jurisdiction was intended to increase certainty and predictability in jurisdictional determinations.
One issue that was alluded to, but ultimately left unanswered, by the Supreme Court in Van Breda was what effect the new presumptive factors framework for the real and substantial connection test had on the enforcement of judgments. Since the Supreme Court’s seminal decision in Morguard Investments Ltd. v. De Savoye in 1990, it is well established law that the real and substantial connection test for jurisdiction simpliciter is intended to be “correlated” with the real and substantial connection test used as a predicate for enforcing foreign judgments. Does this mean that courts are now supposed to use the new Van Breda framework for jurisdiction simpliciter in the judgment enforcement context? This article argues that the real and substantial connection framework established by the Court in Van Breda for jurisdiction simpliciter should not be exported outside of the particular context in which it was developed. The Van Breda approach to jurisdiction simpliciter, although seemingly straightforward, is actually a blunt tool for assessing jurisdiction – and any concerns with its application would only be magnified if applied to the enforcement of foreign judgments.
A copy of the article is available at SSRN here.
January 7, 2014
Canadian courts grapple with difficult legal, factual and evidentiary issues daily. Judging is difficult, but that’s why judges are paid the big bucks.
Mistakes happen. Canadian appellate courts usually deal with harmless error ( usually an evidentiary ruling by a trial judge that, while mistaken, does not meet the standard of reversible error on appeal, or to warrant a new trial) in the context of criminal trials.
But what happens when a trial judge applies the wrong legal test on causation?
The Court of Appeal for Ontario says: “Meh, close enough”:
 The trial judge concluded on the law, that the appellants’ could not meet the “but for” test for causation and that, in the circumstances, he would apply the “material contribution test”. In view of the Supreme Court of Canada’s decision in Clements (which decision was not available to the trial judge when he rendered his decision), this was an error and the material contribution test does not apply here. However, we are of the view that the material contribution test is a more lenient test and if the trial judge applied it, he still found the appellants did not meet that test and failed to prove their case on a balance of probabilities. In spite of what the trial judge said about his application of that test, a fair reading of his reasons would suggest that his very thorough analysis looks very much like the application of the “but for” test. He concluded that while a number of factors could have caused the problems experienced by the appellants. The only one proved on a balance of probabilities was inadequate labour.
Reference: Cowan v. Hydro One Networks Inc., 2014 ONCA 6
See also my previous posts: