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  • #61
    We appear to have a considerable number of TGN members, who are involved in business. Today's SCC decision in C.M. Callow Inc. v. Zollinger, 2020 SCC 45 (38463) 2018 ONCA 896 is important to the business world, because it recognizes the existence of a duty to perform one's contractual obligations honestly or in good faith. The majority of the Court agrees with the trial judge that one party to the maintenance contract failed to do that as a result of which it was found liable in damages. However, there is an important difference of opinion as to how that legal obligation ought to be characterized, and whether the concept ought to have been informed by concepts more suited to the Quebec Civil Code and the law developed therefrom. In any event, business owners should take the time to read this decision, hopefully without their eyes glazing over as they try to digest some of the more picayune points.

    The decision is linked in the ever helpful Supreme Advocacy newsletter authored by Eugene Meehan, QC or members of his law office. Email Template (mailchi.mp)
    This isn't a dress rehearsal. Enjoy yourself. There's no do-over.

    Comment


    • #62
      In this digital age where corporations conduct much, if not all, of their business online, determining where a coporation is carrying on business becomes a more difficult and controversial issue. In this regard, it will bear watching how the SCC resolves the H.M.B. Holdings Limited v. Antigua and Barbuda appeal of the Ontario Court of Appeal decision (https://www.canlii.org/en/on/onca/doc/2020/2020onca12/2020onca12.html?resultIndex=1).

      The case involved the reciprocal enforcement of a judgment issued by the Privy Council with respect to monies owing by the Antigua government for the expropriation of land in Antigua from HMB. That judgment was reciprocally enforced in British Columbia on the basis that Antigua's sale in BC, through agents, of citizenships for investments in Antigua. The Ontario courts, however, did not agree that Antigua was actually carrying on business in BC. Therefore, the judgment which had been reciprocally enforced in BC could not be realized against Antiguan assets in Ontario. Of particular interest are Justice Nordheimer's dissenting comments in the Ontario Court of Appeal decision, which have been extracted nicely in TheCourt.ca's article, which I have linked below:

      "Justice Nordheimer penned the dissent. He stated that the application judge erred in refusing to register the judgement under the RESA [sic] and made a palpable and overriding error (HMB Holding, para 38 – 39). Nordheimer J.A. argued that the requirement to consider whether a party was carrying on business for the purpose of the REJA should be “a very low bar”. Further, this low bar was satisfied by Antigua, which, in essence, sold citizenships in Canada for significant sums of money (HMB Holding, para 43).

      The application judge found Antigua was not carrying on business in British Columbia because it lacked a physical presence. However, Nordheimer J.A. noted that “… in this digital age, it is often unnecessary to have any physical presence in order to carry on a business” (HMB Holding, para 44).

      Lastly, Nordheimer J.A. defined “original court”, pursuant to the REJA, as the one where the judgement was given (HMB Holding, para 51). Nordheimer J.A. reasoned that the original court was the British Columbia court because HMB sought to register the British Columbia judgement in Ontario (HMB Holding, para 51). However, the application judge interpreted the original court as the Privy Council that determined Antigua must compensate HMB for expropriating HMB’s Antiguan properties."

      With respect to the potential significance of the case, the author of the article concludes with the following:

      "Although both Courts decided in favour of Antigua, Justice Nordheimer’s dissent makes important points. As our world becomes increasingly digital, especially with momentum from the pandemic, the definition of where a person is “carrying on business” continues to change. The internet allows businesses to sell in any country. In 2021, it is not uncommon that a Canadian living in the U.S. sets up a business selling products from China to consumers in the European Union. This hypothetical business may have a tough time answering where it carries on business.

      The SCC’s decision for this case has major implications for other areas of law such as tax and international private law. How the SCC defines “carrying on business” in the context of the REJA may bleed into other areas where the term has significant implications but grapples with adapting to the digital landscape."

      TheCourt.ca - Supreme Court of Canada to Decide on Definition of “Carrying on Business”: H.M.B. Holdings Limited v. Antigua and Barbuda (feedblitz.com)
      Last edited by mpare; Nov 19, 2021, 11:17 AM.
      This isn't a dress rehearsal. Enjoy yourself. There's no do-over.

      Comment


      • #63
        Similar legal issues here concerning where value is created and where it should be taxed. Major multi national corporations use locations in countries with favourable tax policies for reporting revenues and profits made elsewhere.......


        EU appeals $17.6B Apple tax ruling

        Bloc to fight court’s ‘contradictory’ decision in favour of tech firm
        Toronto Star
        • 2 Feb 2021
        • AOIFE WHITE AND STEPHANIE BODONI Bloomberg
        MARCIO JOSE SANCHEZ THE ASSOCIATED PRESS FILE PHOTOPeople wander around Apple’s visitor centre in Cupertino, Calif. The company argued in a European Union court last year that all important decisions on Apple products are made at its Cupertino headquarters and that profits should be taxed in the U.S., not in the EU.
        The European Union is seeking to overturn Apple Inc.’s victory in a $17.6-billion (Canadian) tax dispute, saying European General Court judges used “contradictory reasoning” when they found that the company’s Irish units weren’t liable for huge payments.

        A summary of the appeal published Monday shows the EU’s determination to challenge the critical July court judgment. The decision was a dramatic setback to Commissioner Margrethe Vestager’s probes of national tax rulings that she says were an illegal subsidy for some large multinational firms.

        Slapping Apple with a multibillion-dollar order in 2016 was a landmark case for Vestager, showing she had no fear of upsetting the world’s most valuable tech company or the U.S. Treasury. The move helped fuel an EU push to close tax loopholes that allowed some multinational companies to legally pay less tax in Europe.

        The EU said that the lower court improperly conflated Apple’s lack of employees at two Irish units and the company’s level of responsibility for intellectual property on iPhone and iPad sales across Europe. Judges failed to properly weigh the EU’s analysis of the Irish branches and showed “contradictory reasoning” in a separate part of their findings.

        The EU court “categorically annulled the commission’s case in July and the facts have not changed since then,” Apple said in a statement.

        “After a thorough review of the facts and the commission’s claims,” the judges were “clear in their determination that Apple has always abided by the law in Ireland, as we do everywhere we operate.”

        At the heart of the legal arguments are simple questions on where value is created and where it should be taxed. Apple argued that all important decisions on Apple products are made at the company’s Cupertino, Calif., headquarters and that profits should be taxed in the U.S. Apple had delayed returning international profits to the U.S. for years, citing high costs, until changes to the tax code saw it start repatriating foreign earnings in 2018.

        July’s surprise judgment backing that view caused “farreaching consequences,” Vestager said last year. Apple’s Irish units recorded almost all profits from sales outside the Americas, she said, and treating parent and group companies separately allows businesses to “have their cake and eat it” by reducing tax payments.

        Nicole Robins, a partner at economics consultancy Oxera in Brussels, said that while losing the appeal “would be a major setback” for the commission, it wouldn’t necessarily stop it from pursuing other investigations of multinationals’ tax arrangements.

        But she said a defeat would force investigators “to adopt a far higher standard of evidence in order to demonstrate that such tax rulings confer an economic advantage to the multinational in question and therefore constitute illegal state aid.”

        It would also raise the bar on the level of economic and financial evidence needed from the commission, she said.

        European governments are increasingly unsympathetic to how companies have been using rules on intellectual property licensing to avoid high tax rates on corporate income. Vestager investigated a slew of technology and branded merchandise firms, from Amazon.com Inc. to Starbucks Corp., that based units in EU countries with favourable tax policies, such as Ireland, Luxembourg and the Netherlands.

        The EU is now weighing a tax to target revenue, and not profit, generated by sdigital companies if global efforts to overhaul corporate taxation don’t make progress.

        Fortunately there are no rules limiting the number of golf balls you can carry during a match!

        Comment


        • #64
          For decades there has been an obvious tension between the political right and the left on the Supreme Court of the United States. That said, disagreements have generally been articulated civilly and with restraint. The language of judicial diplomacy was jettisoned by Justice Sotomayor (joined by Justices Breyer and Kagan) in her dissenting opinion in Jones v. Mississippi. The appeal examined the legitimacy of a life sentence without parole imposed on a 15 year old who murdered his grandfather. Previous precedent would have led one to believe that before such a sentence could be imposed, the trial judge would have had to satisfy himself that the accused juvenile was incorrigible, and could never be rehabilitated. Those prior SCOTUS precedents and the concept of stare decisis were brushed aside by Justice Kavanaugh and his allies with the ease with which an annoying gnat is flicked away. Often quoting Justice Kavanaugh's comments in prior decision supportive of the importance of precedent and stare decisis, she laid bare the existing fault lines:

          “Today, the Court guts Miller v. Alabama and Montgomery v. Louisiana,” Sotomayor’s often furious formal disagreement began. “Contrary to explicit holdings in both decisions.”

          "... Such an abrupt break from precedent demands “special justification.” i, 590 U. S. ___, ___ (2020) (KAVANAUGH, J., concurring in part). The Court offers none. Instead, the Court attempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Miller and Montgomery.” The Court is fooling no one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent."

          "The Court offers no such justification today. Nor could it. The traditional stare decisis factors include the quality of the precedent’s reasoning, its consistency with other decisions, legal and factual developments since the precedent was decided, and its workability. See Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.) None supports overturning Miller or Montgomery."

          “The Court knows what it is doing,” Sotomayor continued. “It admits as much. Rather than try to harmonize its decision today with Montgomery’s retroactivity holding, it confesses in a footnote that its rewriting of precedent is inconsistent with Montgomery and basic retroactivity principles.”

          "How low this Court’s respect for stare decisis has sunk. Not long ago, that doctrine was recognized as a pillar of the“ ‘rule of law,’” critical to “keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.” Ramos, 590 U. S., at ___–___ (opinion of KAVANAUGH, J.). Given these weighty interests, the Court “usually require[d] that a party ask for overruling, or at least obtain[ed] briefing on the overruling question,” and then“carefully evaluate[d] the traditional stare decisis factors.” Barr v. American Assn. of Political Consultants, Inc., 591 U. S. ___, ___, n. 5 (2020). Now, it seems, the Court is willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification. It is hard to see how that approach is “founded in the law rather than in the proclivities of individuals.” Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.) ."

          Sotomayor Dissents Against Kavanaugh Majority Decision by Citing Kavanaugh (lawandcrime.com)

          "The Court’s misreading of Miller and Montgomery is egregious enough on its own. The Court twists precedent even further, however, by distorting Miller in a way that cannot be reconciled with Montgomery’s holding that Miller applies retroactively under the Teague doctrine. ..."

          JONES v. MISSISSIPPI | Supreme Court | US Law | LII / Legal Information Institute (cornell.edu)
          Last edited by mpare; Nov 20, 2021, 01:40 PM.
          This isn't a dress rehearsal. Enjoy yourself. There's no do-over.

          Comment


          • #65
            Sometimes the law really is an arse. The Feres Doctrine in the US is a perfect example of a glaring, judicially created, unjust rule.

            Supreme Court gets it wrong again, denying justice to those in uniform (msn.com)
            This isn't a dress rehearsal. Enjoy yourself. There's no do-over.

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            • #66
              Originally posted by mpare View Post
              Sometimes the law really is an arse. The Feres Doctrine in the US is a perfect example of a glaring, judicially created, unjust rule.

              Supreme Court gets it wrong again, denying justice to those in uniform (msn.com)
              I'm very surprised that there was only 1 dissenting vote. I'm even more surprised that vote came from Clarence Thomas.
              TorontoGolfNuts.com/TGNFantasy

              Comment


              • #67
                That left me scratching my head as well.

                Originally posted by WWFS View Post

                I'm very surprised that there was only 1 dissenting vote. I'm even more surprised that vote came from Clarence Thomas.
                This isn't a dress rehearsal. Enjoy yourself. There's no do-over.

                Comment


                • #68
                  If you're conducting business in the province of Quebec, you should know that in most cases limitations of liability clauses in contracts will be upheld.

                  Limitation of Liability Clause Upheld Under Québec Law | TheCourt.ca
                  This isn't a dress rehearsal. Enjoy yourself. There's no do-over.

                  Comment


                  • #69
                    Years ago when I was a member of the private bar, I took on many family law cases. They were always more complex and emotionally draining than one might have first imaged. However, I never felt out of my element. With the changes a number of years ago to the Divorce Act, and the obligations that they imposed on members of the bar with respect to, among other things, screening for family violence, I wouldn't feel so sanguine. A glimpse into the duties imposed on lawyers in that regard is revealed in this article.

                    If It Wasn’t Required Before, It Is Now: All Family Lawyers Must Screen for Family Violence - Slaw
                    This isn't a dress rehearsal. Enjoy yourself. There's no do-over.

                    Comment


                    • #70
                      The extraterritorial application of the Charter to state actors will be considered by the SCC in Corporal C.R. McGregor v Her Majesty the Queen. The attached article, written by an Osgoode Hall law student, summarizes the facts and issues nicely.

                      Applying the Charter to State Actors Abroad | TheCourt.ca
                      This isn't a dress rehearsal. Enjoy yourself. There's no do-over.

                      Comment


                      • #71
                        Corporal McGregor's case is interesting. Is it surprising that the protocols / treaties / agreements that govern our relations with the U.S. do not address some of the issues raised in the case?

                        Comment


                        • #72
                          I just came across this dramatization of an actual exchange between a Georgia judge and a criminal defendant, Denver Fenton Allen. I was hardpressed to decide whether I should post this astonishing argument here or in the humour thread. In the end, the legal issues thread won out, but it could just as easily have been placed in the other. Enjoy. Life is truly stranger than fiction.

                          BE FOREWARNED. THIS EXCHANGE IS LACED WITH PROFANITIES.

                          Here's a bit more background on the case.

                          "Denver Fenton Allen was in jail for making terroristic threats. While in jail, he had been accused of beating a fellow inmate Stephen Nalley to death. On June 17th, 2016, a pretrial hearing was held by Judge Bryant Durham. This hearing was to determine if Denver could have new counsel named to represent him at his upcoming murder trial. When Durham refused to name new counsel, Denver unleashed a stream of profanities on him and threatened to kill his whole family. Durham verbally fought back, provoking him with other insults, until Durham eventually adjourned the hearing.

                          ...

                          After the hearing Judge Durham recused himself from the case. He was later admonished for getting into a verbal sparring match with Allen. Durham apologized for his behavior. Allen later tried to draw another judge into a verbal sparring match, but instead of taking the bait the judge simply had him removed from the courtroom. After a competency evaluation, Allen pled guilty to the murder in late 2017 and was sentenced to life imprisonment. Upon pronouncement of the sentence Allen threatened the lives of several people present in the court room. He is currently in Floyd County Prison in Rome, Georgia, USA."

                          State of Georgia vs. Denver Fenton Allen | Rick and Morty Wiki | Fandom

                          This isn't a dress rehearsal. Enjoy yourself. There's no do-over.

                          Comment


                          • #73
                            This could be huge in the US.

                            The Supreme Court will take up a case, Harper v Moore in a few days. This is a case that could upend the current electoral system by giving state legislatures the super power to pass laws that would allow their state houses control over the election rules governing NATIONAL elections and gerrymandering without the ability for state courts or governors or independent commissions to exercise any oversight (unlike our system today).

                            That oversight is crucial to curb laws that are overbroad or unfair to disenfranchised groups of voters or favor one party over another.​


                            How Supreme Court Could Upend Our Democracy - Markin Report


                            As important as this seems to be, it appears to be flying much under the radar.


                            Fortunately there are no rules limiting the number of golf balls you can carry during a match!

                            Comment


                            • #74
                              Originally posted by Fore Warned View Post
                              This could be huge in the US.

                              The Supreme Court will take up a case, Harper v Moore in a few days. This is a case that could upend the current electoral system by giving state legislatures the super power to pass laws that would allow their state houses control over the election rules governing NATIONAL elections and gerrymandering without the ability for state courts or governors or independent commissions to exercise any oversight (unlike our system today).

                              That oversight is crucial to curb laws that are overbroad or unfair to disenfranchised groups of voters or favor one party over another.​


                              How Supreme Court Could Upend Our Democracy - Markin Report


                              As important as this seems to be, it appears to be flying much under the radar.

                              The Independent State Legislature Doctrine seems to have some support within the right wing of the SCOTUS. It effectively gives state legislatures the power to bypass the state constitution.

                              Here's one view as to how the SCOTUS could handle the situation:
                              In <em>Moore v. Harper</em>, the justices should not side with the views of either party.
                              TorontoGolfNuts.com/TGNFantasy

                              Comment


                              • #75
                                Originally posted by WWFS View Post

                                The Independent State Legislature Doctrine seems to have some support within the right wing of the SCOTUS. It effectively gives state legislatures the power to bypass the state constitution.

                                Here's one view as to how the SCOTUS could handle the situation:
                                My head is starting to hurt. All of this legalistic mumbo jumbo and astute minds arguing different precedents and theories, when what we are really talking about is people trying to skew the vote.

                                If that is not put on the table and discussed for what is, everyone is just seeking a win on technical terms and ignoring the real issue.

                                Fortunately there are no rules limiting the number of golf balls you can carry during a match!

                                Comment

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