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He Said / She Said: Voting, Voicing, and Testifying

Studying the history of the women’s suffrage movement reveals many social factors that affected and continue to affect Canada’s legal system. As readers of the Ms. Suffragette blog are aware, 2016 celebrates one hundred years of women’s voting rights in Canada. Significant progress in this area has been made over the last century, as women and men now represent approximately equal numbers of voters [1].

By enacting voting rights for women, Canadian society recognized that women and men had equal voices in the political sphere. The ability to express one’s voice in a political forum reflects the fundamental right to express one’s personal opinions on important, public matters.Therefore, the right to vote is tied to the core of personhood. However, it is essential that equality between men and women extends outside the political sphere. Just as women are considered equal to men politically, they must also be considered equal to men individually, in social situations, and under the law.

In Canadian courts, the evidentiary testimony of a witness is presented through viva voce evidence, which is the legal term referring to oral testimony in court. In the search for the truth, a witness’s factual views on an event can be compared to another’s understanding of the same event. This comparison of views often occurs in the context of sexual assault trials. A complainant of sexual assault can relay the events as he or she views them, and the accused can also testify as to his or her version of the events in question. Courts are sometimes presented with a diametrically opposed, he-said/she-said version of events. In assessing the truth, the court will consider the credibility of the witnesses. In the Canadian legal system, the testimony of women and men is assessed equally, irrespective of their gender [2]. However, in countries that include Islamic Shari’a law in their legal systems, a woman's testimony is not accorded equal weight to a man’s testimony. For example, in countries such as Bahrain, Jordan, Kuwait, Lebanon, Saudi Arabia, Syria, and the United Arab Emirates, women are not perceived to be as credible as men in regards to their testimony [3].

Further, sexual violence tends to be perpetrated by men upon women, and this gender-based trend is fairly uniform globally [4]. In legal systems where women are viewed as having equal voices to men, victims of sexual violence may have better access to justice, and perpetrators are more likely to be reprimanded or rehabilitated. However, in countries that incorporate Shari’a law into their legal systems, victims have less opportunities to have their voice heard under the law. As women are more likely to be victims and as men are more likely to be perpetrators, women have less chances to effect retribution against male perpetrators.

In traditional Shari’a religious courts “the testimony of two women is required to match the value of one man’s testimony” [5]. In Jordan, for example, a woman who applies for a divorce on the basis of domestic violence must provide the court with “two male witnesses” because her own evidence is insufficient [6]. Lebanon, Kuwait, and Syria have civil and criminal court systems for most claims and offences. However, the systems are supplemented with a Shari’a court system [7]. The Shari’a courts, where a woman’s testimony is worth only half of a man’s testimony, prosecute moral crimes. Moral crimes in these religious courts include adultery, marital rape, and “honor” [sic] crimes. An example of a potential honour crime is “the murder or beating of [a woman] for alleged sexual misconduct” [8].

Due to international pressure, especially from the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), many countries have moved away from purely Shari’a-based legal systems in order to increase the legal and political rights of women [9]. Bahrain ratified CEDAW in 2002, but with reservations concerning “family law, equality, freedom of movement, and residence” [10]. Generally, women in Bahrain are equal to men in the legal courts, but Shari’a courts still “state that a valid witness should be two men, or two women and one man” [11]. Egypt ratified much of CEDAW in 1981, and a woman’s testimony is legally equal to that of a man [12]. However, conservative power structures still make access to justice difficult for women when bringing assault claims to the courts [13]. The United Arab Emirates ratified many of the CEDAW Articles in 2004, but retain “precepts of Shari’a regarding [certain traditional] rights” [14]. For example, despite Dubai’s international appeal, in the absence of a confession to sexual assault, four adult male witnesses must supplement a female complainant’s testimony in order for a court to proceed with a conviction [15].

In Canada’s legal system, a woman’s voice is equal to that of a man in regards to court testimony. However, female complainants of sexual assault still face a stigma that is not attributed to complainants of non-sexual violence. Since sexual violence is a gender-based phenomenon, women are often disproportionately affected and negatively treated when they allege that they were sexually assaulted. The highly-publicized Jian Ghomeshi sexual assault trial was completed last week, and the judgment will be released on March 24th. Check back tomorrow for Ms. Suffragette’s analysis of the treatment of the female complainants and why the history of women’s positions in society is so important to the study of law.

 

[1] “Estimation of Voter Turnout by Age Group and Gender at the 2011 Federal General Election” (17 February 2016), online: <http://www.elections.ca/content.aspx?section=res&dir=rec/part/estim/41ge&document=report41&lang=e>.

[2] Sameena Nazir & Leigh Tomppert, Women's Rights in the Middle East and North Africa: Citizenship and Justice (New York: Rowman & Littlefield Publishers, 2005) [Nazir].

[3] Ibid.

[4] “The Facts: Gender Inequality and Violence Against Women and Girls Around the World” (17 February 2016), online: <http://www.advocatesforyouth.org/publications/publications-a-z/1556-the-facts-gender-inequality-and-violence-against-women-and-girls-around-the-world>.

[5] Nizar, supra note 2 at 44.

[6] Ibid at 114.

[7] Ibid at 44, 128, 278.

[8] Ibid at 278.

[9] Ibid at 54.

[10] Ibid at 52, 54.

[11] Ibid at 53.

[12] Ibid at 73.

[13] Ibid at 71.

[14] Ibid at 317.

[15] “Dubai sentences Norwegian woman who reported rape” (17 February 2016), online: <http://www.bbc.com/news/world-middle-east-23381448>.

The international reach of mareva injunctions: Talisman Energy Inc v Flo-Dynamics Inc

Lawyers practicing creditor-debtor law in Canada will want to take note of a recent decision from the Alberta Court of Queen’s Bench, Talisman Energy Inc. v. Flo-Dynamics Inc, 2015 ABQB 340.  The Court held it could order a defendant to an Alberta lawsuit to transfer money located in another country back to Canada, pending trial.  The Court ultimately declined to exercise this power, but by finding that it could order such relief, the Court has provided plaintiffs with an important pre-judgment remedy when suing sophisticated debtors, who have assets located in other jurisdictions.  At the same time, the Court has indicated that this remedy is onerous, and will only be granted when less intrusive alternatives are not available to preserve assets, pending trial.

The Factual Background

Alleged Breach of Fiduciary Duty

One of the individual defendants in the lawsuit was a former employee of Talisman Energy Inc. (“Talisman”). Talisman alleged that the individual defendant directed valuable contracts to companies, in which he had undisclosed financial interests.  Talisman sued the individual defendant for breach of fiduciary duty (amongst other causes of action).[1]

Transferring Money to Austria

Three weeks after being served with Talisman’s Statement of Claim, the individual defendant transferred $4 Million USD out of a corporate defendant’s account, through a number of intermediary accounts, and finally into a bank account in Austria.[2] He jointly held the Austrian account with another defendant.  The individual defendant’s only asset of significant value remaining in Canada was a house in Calgary, worth $1.7 million.[3]

The Procedural Background

Talisman applied for a “mareva type” order requiring that the funds be transferred back to Canada and placed in a lawyer’s trust account. In the alternative, Talisman asked the Court to grant a worldwide mareva order, prohibiting any person from dealing with the funds in the Austrian bank account.[4] Pending a full hearing of Talisman’s application, the individual defendant agreed to an Interim Order, pursuant to which he would provide Talisman with 15 days notice before dealing with the funds in the Austrian account.[5]

The Court’s Decision

Despite finding that it had the power to grant an order requiring that the funds be transferred back to Canada, the Court declined to do so, and instead ordered that the funds be placed in a solicitor’s trust fund in Austria.  The defendant continued under an obligation to give Talisman notice before withdrawing the funds.[6]

The Test for a Mareva Injunction

A mareva injunction is an “interlocutory order restraining a civil defendant from disposing of or handling assets in a specific way prior to trial.”[7] To obtain a mareva injunction, the plaintiff must show:

1. A strong prima facie case, and
2. A real risk that the respondent will remove the assets from the jurisdiction, or dissipate them to avoid execution.[8]

The Court was satisfied that both elements of the test had been met.

1. Talisman had a strong prima facie case. The individual defendant admitted that one of his companies received significant payments (>$27 million) from Talisman, some of which he approved in the course of his employment at Talisman. He in turn received dividends and other income from that company. He did not disclose his interest in the company to Talisman, in breach of Talisman’s Policy on Business Conduct and Ethics.  The Court held that Talisman had established a prima facie case sounding in breach of contract, and breach of fiduciary duty.[9] 
2. The risk of the defendant dissipating his assets to avoid execution was high. He moved the funds out of Canada shortly after being served with a Statement of Claim. He subsequently concealed the existence of the Austrian account for over a year, and only revealed it when questioned as part of the lawsuit.[10]

The Court’s in personam jurisdiction over the defendant

The Court was also satisfied that the mareva injunction could be used to order a defendant to transfer assets held in another country back to Canada, because the Court had in personam jurisdiction over the defendant.[11]

The Court’s reasons for not granting the mareva injunction

The Court declined to grant the requested order because the risk of the assets being dissipated could be mitigated with a less onerous order. Courts are cautious when granting mareva injunctions, because they are granted before the plaintiff’s claims have been substantiated.[12] The Court cautioned that it would not assist plaintiffs in “paralyzing the activities of any person or firm against whom he makes his claim by freezing assets” so that the plaintiff is guaranteed recovery if its claim succeeds.[13]  The Court saw no compelling reason to order the transfer of the funds back to Canada.[14] Neither the fact it would be difficult to enforce a judgment in Austria, nor that the defendant had few other assets in Canada swayed the Court.

What Would it Take to Get the Order?

What more could Talisman have done to convince the Court to exercise its jurisdiction to order the repatriation of the funds? The Court’s reasons point to one possible answer.  Talisman had relied on the English case of Derby & Co Ltd v Weldon (No 6).[15]  The Court quoted a passage from Derby.  One of the English judges, in concurring reasons, had opined “the exercise of authority to transfer assets may be appropriate where the assets are in a country ‘which has no effective system of law...’”[16]

The Alberta Court was concerned with preserving the defendant’s assets, pending the outcome of the trial, as opposed to facilitating enforcement, in the event the plaintiff succeeded at trial.  Because Austria’s legal system provided sufficient safeguards to preserve the funds, the Court did not deem it necessary to have them returned to Canada. The result may have been different if the funds had been transferred to a country without a robust legal mechanism for preserving the assets.

 

---

[1] Talisman Energy Inc v Flo-Dynamics Systems Inc, 2015 ABQB 340 at para 4 [“Talisman”].

[2] Ibid at para 5.

[3] Ibid at para 13.

[4] Ibid at para 6.

[5] Ibid at paras 2, 7-8.

[6] Ibid at paras 2, 7-8.

[7] Ibid at para 21, citing Aetna Financial Services v Feigelman, [1985] 1 SCR 2 at para 1, 15 DLR (4th) 161 [“Aetna"].

[8] Talisman, ibid at para 23.

[9] Ibid at para 39.

[10] Ibid at paras 40-43.

[11] Ibid at para 25.

[12] Ibid at paras 46-48.

[13] Ibid at para 24, citing Aetna, supra note 7 at 8.

[14] Ibid at paras 48-49.

[15] Derby & Co Ltd v Weldon (No 6), [1990] 3 All ER 263.

[16] Talisman, supra note 1 at para 29, citing Derby & Co Ltd, ibid at 276. 

Professor Lettow Lerner on Civil Juries

My former colleague and now Justice Russ Brown used to write about civil juries. We liked (I say liked because I still do but I am not sure what Justice Brown thinks today) them.

Professor Renee Lettow Lerner, one of American's eminent legal historians and Professor of Law at George Washington Law School, is guest blogging over at the Volokh Conspiracy. That is very cool.

What is even more cool is that she is blogging about the origins of civil juries.

She has so far blogged three parts:

1. America's misplaced sentiments about civil juries.

2. The unromantic origins of the jury and the search for alternatives.

3. The efforts to control civil juries due to their unpredictable nature.

Here is an excerpt from part 3:

The previous post stated that the jury was originally self-informing. Jurors came to court knowing their verdict, without any instructional proceeding. This was possible because almost all jurors came from small, tight-knit villages in which everyone knew everyone else’s business.

That state of affairs did not survive the greatest catastrophe of the age: the Black Death. In little over a year, from 1348 to 1349, the bubonic plague is estimated to have killed between 30 and 40 percent of the population of England. [See John H. Langbein, Renée Lettow Lerner, and Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions 225 (2009).] In the aftermath of this almost unimaginable death, to put it gently, society changed. The mobility of labor greatly increased; persons were no longer tied to the land and didn’t necessarily know their neighbors or local events well. Jurors could no longer be counted on to come to court knowing what to say.

So a method had to be found to instruct the jurors about what had happened. That method was oral trial, presided over by a royal judge. The method could hardly have been written evidence, as in Chancery or on the continent, because few jurors could read. 

This is very cool stuff for civil jury nerds. You should read all three posts and stay tuned for more, if you are also a civil jury nerd.

Interview with Justice Clackson on the Most Important Sentence Ever Written

On Friday you got to read Ms. Magna Carta’s take on Clause 39. Now tune in to hear what Alberta Court of Queen’s Bench Justice Clackson has to say about the famous chapter of the Magna Carta!

 

You can't sue Iran

unless Parliament says you can, so said the Supreme Court today in Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62.  I always thought state immunity meant that, so good to see that my knowledge of the law is still good. But what do I know about this stuff? Not much.  

The person who does know a lot about this is my colleague Joanna Harrington who wrote the book on the subject. She and (three others) are co-authors of International Law:  Doctrine, Practice, and Theory, 2nd ed.  Toronto:  Irwin Law, 2014.

She was also cited today by both the majority and the dissent in Kazemi. Four times by LeBel's majority and once by Justice Abella in dissent.

Congratulations!!

Bouck on SCC on Court Fees

The late Justice Bouck of the BC Supreme Court was a friend of this law school. He was very kind to myself and (now Justice then professor) Brown. Among his passions was the question of civil procedure and its fairness.

A few days the Supreme Court struck down BC's court fees' structure in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59. The Court held that when fees deprive litigants of access to the courts, the fees are too high.

Bouck would have gone farther than the SCC did.  In his book, Exploding the Myths (Juriliber 2006) at 69, 71:

 

"Words often quotes from Magna Charta declare: 'To no one will we sell, to no one will we refuse or delay, right or justice.'  Nonetheless, the executive is deep into the business of selling ... justice.  It imposes punitive filing fees on litigants for processing a civil case through the court system.  It forces litigants to pay hearing fees for the services of a justice. ...

 

...

 

"As to all court filing and hearing fees, it seems wrong in principle to charge litigants anything.  Without paying filing and hearing fees, individuals may obtain the services and advice from politicians in the legislative branch of government.  they may also receive free advice and many governmental services from public servants in the executive branch.  These two branches are part of the law making machinery.  Since the public can obtain services free from the laws' makers, why should they have to pay any filing or hearing fees for the services of judges as the laws' interpreters?"

Posner on Radio Shack

Not the company itself, but a coupon class action settlement that was being objected to by among others, Ted Frank of the Center for Class Action Fairness. Ted has visited our law school in the past and spoken on obesity lawsuits. 

The audio is here, but the Forbes article reproduces some of the great Posnerian gems questioning the plaintiff's lawyer:

Posner: Why coupons? Why not cash?

Markoff: Frankly it comes down to what you can get a defendant to pay. And in this case they were entirely unwilling –

Posner: Well, they paid $1 million in attorneys fees, pretty generous.

Markoff: Yes, that’s true, judge.

Posner: Well, presumably if you didn’t have $1 million in attorneys fees they would have paid more to the class.

...

Markoff: Logically that makes sense. But I can tell you in this case, that was not the case.

Posner: So Radio Shack is not logical, you’re saying. Give me a reason for why it would be logical for a company to care how much the class got, relative to the plaintiffs’ counsel.

...

Markoff: Rationally, you’re absolutely correct.

Posner: So you’re saying they’re irrational?

Markoff: I only met the man once.

Posner: Struck you as a little crazy?

Markoff: All he made clear was his disdain for plaintiff attorneys. 

For students who are interested in mooting pay attention to Ted Frank's oral argument (around minute 10). He did that with no notes! 

The Bieber Deposition

First of all, on behalf of all Canadians, my apologies to the world for JB. His depsoition tape came out yesterday, and instead of having to sit through the entire thing, here are the highlights. Watch till the end for the best part:

 

)

Quentin Tarantino Meets CivPro

It is not often that one associates Quentin Tarantino with the mundane question of personal jurisidction! But sure enough, the legal question of whether an American court has personal jurisidction over the website Gawker has come up - indeed, it is the paramount question that must be answered prior to the bigger question of whether Gawker can be held liable for contributory copyright infringement? Gawker claims it is located in the Cayman Islands, thereby making out of reach for personal jurisdiction. Needless to say, this case will push the limits on a variety of civil procedure questions. That being said, these issues have come up the past ten to fifteen years, and I suspect that jurisdiction will be found. Stay tuned!

Timely Filing!

From Headnote of the Day:

Court of Appeal would treat, as timely, a motion for devolutive appeal from a judgment declaring a prior judgment null and void and granting enforcement of an agreement to pay judgment, where it was more likely than not that the notice of judgment was actually mailed on the Monday after a long weekend of a popular and well-attended jazz cultural event rather than on the stated date of the prior Thursday, by court employees who may have departed the courthouse in haste on Thursday for the event.

Shields Mott Lund, L.L.P. v. P.R. Contractors, Inc.,2013 WL 1247928 (La. App. 4 Cir. 3/27/13)

Conflicts and Choice of Law

Volokh reports  on a case from the United States Court of Appeals for the Fifth Circuit where they refused to enforce a Nova Scotia libel judgment on the grounds that Canada's libel burden of proof requirements are different from the Americans'.

This is the first time in a while that I have seen an American federal court refusing to enforce a Canadian judgment.

Served on Stage

Here is a possible Civil Procedure Exam question:

A singer, let us say for the sake of this example her name is Ciara, is performing on stage. She sees someone whom she thinks is a fan gesturing to her, so she reaches into the crowd only to receive a stack of papers that are legal papers (a Complaint, Motion for Judgment, Statement of Claim, or whatever your jurisdiction calls it). She throws them back into the crowd or to the person who served her.

Question: has she been properly served? Discuss!

Does it matter that she is caught on tape accepting the papers?

National Judges

An Ontario judge, a Quebec judge, and a BC judge walk into a bar... Well not quite, but in national mass tort class actions, you might as well. Given the complexity and national implications of these suits, it seems that the trend will now be for the judges from different provinces sitting together.

Copy and Paste ok

In a victory for the 'copy and paste' function, the Supreme Court upheld the trial verdict of  a trial judge who ruled for the plaintiff in a medical negligence case and who copied and pasted 321 of 368 paragraphs from the plaintiff's factum.

The result in the case stands in contrast to a similar case that the Alberta Court of Appeal had issued on a similar issue a few months ago.

Regulatory agencies will also find some solace in this decision, as much of what is written by then also constitutes cutting and pasting from submissions. 

 

Online service

Brian Burke can serve notice of his lawsuit on online forum users but who are not easily identified online. In other words, he doesn't need to serve them in person. 

The BC Court's ruling is opening new territory in the rules of civil procedure in an Internet age. Expect more of this in the future.`

File a motion by e-mail

In this electronic age, even the courts have encouraged electronic filings. At my former agency, we were fully paperless. All motions were filed electronically. That being said, filing a motion by e-mail is not the same as filing a motion electronically, esepcially if the e-mail is being sent to the judge. This lawyer in Texas found out the hard way, as Josh Blackman, who uploaded the order, shows.

Factual Causation, Parsimony, and the Lord of the Tests

One Test to rule them all, One Test to find them,
One Test to bring them together, and in the light of doctrine bind them.

(apologies to Tolkien, Lord of The Rings)

Law needs to describe itself as a science, ultimately based on empirically verifiable principles, in order to avoid being nothing more than another form of theology, ultimately based on faith. Faith, by definition, does not require empirical verification. Similarly, Law's principles and rules need to avoid amouting to a form of magic that is fantasy, not merely an instance of knowledge beyond our current understanding. Magic, too, does not need verifiability. It simply is.

Physics has its search for the TOE (Theory of Everything). Canadian tort doctrine, in the area of factual causation, at least as expounded by current Supreme Court of Canada doctrine, apparently has its own TOE, its own one "One Test": the but-for test.

Unfortunately for the SCC, the but-for test when properly understood is not a TOE at all. It is not a theory that explains everything.While it is, in practice, a default test; nonetheless, even as a default test, it is not the all-powerful master test in the sense of the One Ring in Tolkien's Lord of the Rings.*   (The LoTR has been endlessly parodied. Two of the best are the Harvard Lampoon's  Bored of the Rings - easy enough to find online - and the Jack Black, Sarah Michelle Geller, and others parody of a seminal scene.) Nor, is it even even a positional equivalent of Asimov's Zeroeth Law of Robotics. 

(edited June 23, 25)

Live by the sword

Salter v. Hirst  2010 ONSC 3440 is the rare example, in Canada, of what in the U.S. is called a judgment N.O.V. (judgment non obstante veredicto) - a judgment by the judge in favour of one of the litigants notwithstanding the jury's findings of fact which, on their face, satisfy the requrirements for a verdict in favour of the other litigant.

In Salter, the jury found in favour of the plaintiff on all the issues [of fact] required for judgment liability against a defendant. The plaintiff moved for judgment in accordance with the findings of the jury. The defendant moved to have the action dismissed on the basis that one of the findings was perverse and not supported by any evidence. The defendant succeeded. The plaintiff failed. The rial judge held that there was no evidence whatsoever upon which the jury could have made the finding it did. The action was dismissed.

The case is also a reminder of the potential consequences of not having the necessary evidence, and not asking the necessary questions, even if one has a sympathetic plaintiff, a tragic injury, and a jury.

The case is also a reminder of the fact that there are some issues which require expert evidence: areas where lawyers won't be permitted to appeal to the jury members "common sense" as a basis upon which the jury can draw inferences about facts for which there was no positive evidence.

Professor Brown's "The Possibility of "Inference Causation": Inferring Cause-in-Fact and the Nature of Legal Fact-Finding" (2010) 55 McGill L.J. 1 is a prescient article on the issue that tripped the plaintiff. There's a link to a version of the article here. (In fact, the entire volume of the McGill LJ is on that site, just a bit of surprise  because the articles aren't available on the jounal's site, itself. It's not quite the version that's in the MLJ, at least in format, since the online version has endnotes not footnotes. I didn't check content.)

In the US, in civil cases, the practice is to ask the jury detailed questions. In Canada, the practice is to ask the jury general questions. Most litigators (in my experience) assume that generality favours the plaintiff, particularly given the narrow grounds for attacking appealing a jury verdict: essentially, no evidence upon which a jury acting reasonably could make the decision it did. This is one case where that generality may have backfired on the plaintiff.

DC

Blame Peter?

or be careful what you wish for, just in case you get it.

Once upon a time Ontario had legislation which, as statutes are wont to do, contained some provisions; that is, sections (clauses) declaring something that was supposed to be law.

One of the sections declared (provided) something that was probably required for the better working of the area of law to which it applied. It also seemed to declare (provide) something else - lets call that Principle C - that was not necessary, in the sense that Principle C already and necessarily existed as a matter of the common law of that area of law. However, not surprisingly, the Ontario courts acted is if (indeed some even said) that Principle C was a creation of that section of the statute. None of the decisions bothered to consider whether the section did nothing more than declare existing law because it didn't matter to the end result. The result was what mattered.

Roll Them Bones

Consider a reductio.

F.H. v. McDougall, 2008 SCC 53 at para. 46, [2008] 3 S.C.R. 41.

"Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.  But again, there is no objective standard to measure sufficiency.  In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant.  As difficult as the task may be, the judge must make a decision.  If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test."

(emphasis added). We will leave the circularity and tautology(?) for another day.