Common law – Prosecute Bush Cheney http://prosecutebushcheney.org/ Wed, 15 Sep 2021 12:39:48 +0000 en-US hourly 1 https://wordpress.org/?v=5.8 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png Common law – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 The Opportunities and Challenges of Applying Common Law Principles to a Multicultural Nation – Family and Marriage https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation-family-and-marriage/ https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation-family-and-marriage/#respond Wed, 15 Sep 2021 12:39:48 +0000 https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation-family-and-marriage/ Canada: The opportunities and challenges of applying common law principles to a multicultural nation September 15, 2021 Clark Wilson LLP To print this article, simply register or connect to Mondaq.com. The common law legal system builds on itself, with higher courts setting a precedent for lower courts and so on. As society evolves, so does […]]]>

Canada: The opportunities and challenges of applying common law principles to a multicultural nation

To print this article, simply register or connect to Mondaq.com.

The common law legal system builds on itself, with higher courts setting a precedent for lower courts and so on. As society evolves, so does the common law, but some traditional legal tests remain in place long after societal norms have advanced. This can cause problems when trying to apply traditional legal tests to modern society. A recent decision of the British Columbia Court of Appeal, Kaur vs. Singh 1, demonstrates the importance of the contextual application of traditional common law principles in a multicultural nation.

The appellant, Ms. Kaur, and the respondent, Mr. Singh, celebrated a civil marriage on February 6, 2019 so that the parties began to live together. Their plan was to delay the consummation of the marriage until after their traditional Gurdwara ceremony, in accordance with the Sikh religion. While living together, the relationship became difficult and the sanity of the parties declined. The relationship ended, and Kaur made an unchallenged request to have the civil marriage annulled for non-consummation. The lower court dismissed the petition, stating that the parties had failed the required legal test as they both agreed that there was no physical, physiological or psychological reason not to consummate the marriage.2. Ms. Kaur appealed.

The Court of Appeal: A Contextual Approach to Traditional Legal Principles

The Honorable Justice Grauer reviewed the nearly 80-year-old Supreme Court of Canada decision in Heil vs. Heil 3, which is still authoritative for the principle according to which, in order to obtain the cancellation for non-consumption, it is necessary to provide proof of some incapacity, “which is in certain cases a structural defect, but which can also result from a condition, with the effect of creating in the mind of the [individual] an aversion to the physical act of consumption “4. Contemporary jurisprudence has clarified that there must be a real incapacity which is not “a mere capricious refusal”5, and this incapacity may be the result of impotence or other disabilities that are physical, or of a psychological and emotional nature.

The Court concluded that the common law principles in Kaurrequired a contextual application to reflect the multicultural society in which we live. A sincere religious and cultural belief can be regarded as a psychological incapacity in accordance with the evolution of legal principles 6to justify the cancellation. The evidence established that the management of the relationship was based on the religious and cultural considerations of the parties. The Court found that “[t]The real aversion to consumption arose out of their religious beliefs, creating a real incapacity “7. The lower court did not sufficiently take into account that the parties’ agreement to abstain reflected an underlying aversion to consumption before completing the traditional Sikh Gurdwara ceremony – and that “[t]his belief pre-existed the interpersonal struggles between the parties “8.

Importantly, the Court advised any future party to present evidence of distinct cultural and religious norms where those norms may influence and impact the conduct of the parties. A diverse understanding of religion and respective practices can be helpful for a judge and educational for those who adjudicate similar cases afterwards.

Footnotes

1 Kaur v. Singh, 2021 BCCA 320 [Kair].
2 Same as 8.
3 Heil v. Heil, [1942] RCS 160 [Heil].
4 Ibid. p. 163.
5 Kaur, supra note 1 to 16.
6 See generally Jomha v. Jomaa, 2010 ABQB 135; Grewal v. Sohal, 2004 BCSC 1549.
7 Kaur, supra note 1 to 20.
8 Kaur, supra note 1 to 24.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

POPULAR ARTICLES ON: Canadian Family and Marriage

So, you haven’t done a power of attorney?

O’Sullivan Estate Lawyers LLP

In our review “Planning for Disability Using a Power of Attorney”, we discuss the benefits of having a power of attorney for personal care (medical and other decisions) and for property …

If you die rich, have you failed?

Dentons

Recently, James Bond actor Daniel Craig made headlines when he said the inheritances were “unpleasant” and noted that he planned to dispose of his estimated $ 160 million fortune before his move. dead.

Cross-border domestic contracts

O’Sullivan Estate Lawyers LLP

There are many considerations that go into making the decision to move to a new jurisdiction. Which might not be that obvious, or sadly it might even be at the bottom of the to-do list …


Source link

]]>
https://prosecutebushcheney.org/the-opportunities-and-challenges-of-applying-common-law-principles-to-a-multicultural-nation-family-and-marriage/feed/ 0
Common law applies “in accordance with cultural norms” of parties seeking annulment: court https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/ https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/#respond Wed, 08 Sep 2021 12:57:00 +0000 https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/ The British Columbia Court of Appeal allowed annulment of the marriage on the grounds that the union was not consummated, stressing the “role that an honest and sincere religious belief can play in determining incapacity. “. In Kaur vs. Singh, 2021 BCCA 320, the court heard that the appellant, Prabhjot Kaur, had met her spouse, […]]]>

The British Columbia Court of Appeal allowed annulment of the marriage on the grounds that the union was not consummated, stressing the “role that an honest and sincere religious belief can play in determining incapacity. “.

In Kaur vs. Singh, 2021 BCCA 320, the court heard that the appellant, Prabhjot Kaur, had met her spouse, the respondent, Gurvinder Partap Singh, at Selkirk College, where they were both students.

According to court documents, the two “decided to get married and did so in a civil ceremony held on February 6, 2019”.

“Their plan,” said the appellant, was “to delay the consummation of the marriage until after the Sikh religious ceremony which they planned to undergo later, in accordance with their tradition.”

Kaur explained that the couple “wanted to get married in a civil ceremony so that they could live together, which would be against their religion, but postponed the consumption until they had undergone a traditional Gurdwara ceremony.”

According to court documents, the couple lived in the same house, which they shared with friends, but they lived “separately”. The appellant testified that the relationship was in trouble and that the couple would have “a lot of arguments”.

The marriage was still not consummated when the appellant left the house. “It was effectively the end of the relationship,” the court noted.

Kaur asked for “a declaration annulling her civil marriage with the respondent” citing “non-consummation” as a reason. However, Justice J. Miriam Gropper of the British Columbia Supreme Court dismissed the motion.

According to court documents, Justice Gropper “accepted that there was no consummation of the marriage, but found that the parties had failed to meet the common law requirement of non-consummation resulting from a physical or psychological disability ”.

On appeal, Kaur argued that Gropper J. erred in failing to “give proper weight to the appellant’s belief in the necessity of a Sikh Gurdwara ceremony prior to consumption”; by failing to “take into consideration the consent of the respondent; ”And“ by concluding that there was no psychological disability ”.

Justice J. Christopher Grauer, writing for the Court of Appeal, noted that “the founding Canadian decision on annulment is Heil vs. Heil, [1942] RCS 160.

“Although seminal, it must be recognized as reflecting notions of gender roles which are now outdated,” he said.

In Heil, explained Judge Grauer, the Supreme Court ruled that: “The simple refusal of a woman to have marital relations because of her whim is not a sufficient reason to justify a judgment of nullity of the marriage; there must be some disability, which in some cases is a structural defect, but in some cases may result from a mental state creating an invincible aversion to the physical act of consuming. Such a mental state can be inferred from the proven facts, and justifies a decree of annulment of marriage.

Heil settled the law, “he noted,” and set out the test for granting an annulment order: there must be some disability, “which in some cases is a structural defect, but which can also result from a mental disorder. condition, with the effect of creating in the mind of the woman an aversion to the physical act of consumption. “

The judge acknowledged that the British Columbia Court of Appeal “upheld the Heil test in Juretic vs. Ruiz, 1999 BCCA 417, and in KHL vs. GQL, 2003 BCCA 313.

However, Judge Grauer wrote, “in the multicultural society reflected in our nation, the common law principles at issue here must be applied contextually, in accordance with the cultural norms of the parties seeking annulment.”

“This has been explored in Jomha [v. Jomaa 2010 ABQB 135], “he added.” I consider that a psychological disability consistent with the principles discussed in these cases can arise as significantly from sincere religious and cultural beliefs as other forms of psychological aversion, both of which are, contextually, a ” normal and predictable reaction ‘as discussed in Grewal [v. Sohal 2004 BCSC 1549]. “

“In this case, IMHO, the judge focused too much on the physical and psychological aspects of capacity in the traditional sense discussed in the cases. In this way, she did not fully appreciate, as we now must, the role that an honest and sincere religious belief can play in the determination of incapacity, ”said Judge Grauer.

The judge determined that the evidence “established that the parties’ decisions on how to manage their relationship were based on religious and cultural considerations.”

“They wanted to live together, but according to their cultural norms, they couldn’t do it without ceremony. Hence the civil ceremony. But once living together, they could not consummate the marriage in accordance with their religion until they underwent the traditional Sikh Gurdwara ceremony, and therefore did not consummate it. Although they had other reasons, including avoiding pregnancy, these did not require non-use. The real aversion to consumption arose from their religious beliefs, creating a real incapacity, ”he added.

Judge Grauer also pointed out that “it would have been useful for the judge, and would be useful for such cases in the future, to have more precise evidence concerning the cultural and religious norms of the parties and, above all, the manner and the extent to which these norms impacted the non-consummation of marriage.

“The applicant for annulment based on a psychological inability to consume, whether based on a sincere religious belief or otherwise, must establish a disability on the balance of probabilities,” he noted.

Judge Grauer, with the consent of Justices Peter Willcock and Joyce DeWitt-Van Oosten, decided to allow the appeal and annulled the marriage in a decision released on August 27.

Georgialee Lang, Independent Family Lawyer

Georgialee Lang, a freelance family law practitioner in Vancouver, said her first impression was that the BC Supreme Court chambers judge “was applying the law correctly.”

“Although these cases are relatively rare, it is clear that this decision is important,” she said, noting that the Court of Appeal “advanced the law to include religious and cultural beliefs as factors that shape an individual’s emotional and psychological mind and spirit.

“As the [British Columbia Court of Appeal] identified, the aversion to wholeness stemmed from the appellant’s religious beliefs, and the court recognized the powerful role that religion plays in the lives of those who are committed to the tenets of their faith. I think this case may have implications for other areas of law where arguments based on faith and culture are at play, ”she added.

Ari Wormeli, family lawyer and partner at YLaw in Vancouver, believes that “this decision is actually going to affect fewer people than it looks.”

“While the step of viewing a conscious and voluntarily assumed impediment (adherence to a set of religious principles) as ‘invincible aversion’ in the same way as, for example, the inability to achieve an erection unconsciously and unintentionally caused by psychological trauma could be considered a significant change, and although I am not an expert on religions or other philosophies, note that this was based on very narrow grounds and likely will not have wide application , at least not as it is, ”he explained.

“This is because when a lot of people get married, they have the religious ceremony around the same time,” Wormeli added, noting that “in this case, it didn’t happen”.

As an example, Wormeli explained that “if a Catholic person says, ‘No sex before marriage’ and then marries in a church ceremony, they will not be able to avail themselves of this new decision. because his religious principles are no longer an obstacle. “

“In terms of lessons for lawyers, it is that unusual bets sometimes pay off in terms of widening the eyes of the courts,” he added, noting that “it is conceivable in the future that this voluntary assumption of involuntary principles (i.e., you can choose to be a Jew, and in particular an Orthodox Jew, in which case wearing the kippah becomes obligatory if you are male) can be used to open again plus the door.

“If you see an angle of attack that has not been tried (especially a legal argument, where the standard is fairness and you don’t have to worry about deference) and you have a client who is ready to take that risk, go for that, ”he said.

Regarding takeaways in the future, Wormeli said “the question would be: if my client doesn’t fit into what I’ll call the ‘traditional’ cancellation categories, but wants everything Likewise a cancellation, you might delve into how your client’s reasons for not consummating the relationship might equate to the voluntary assumption of a previously dictated set of principles.

“In order to be really careful, if possible, expert evidence could be presented (from a religious leader or possibly a professor of philosophy) regarding the requirement for followers of a certain belief system to follow certain restrictions, ”he added.

Counsel for the appellant did not respond to the request for comment. The respondent represented himself on appeal.

If you have any information, ideas for articles or tips for The Lawyer Daily please contact Amanda Jérôme at Amanda.Jerome@lexisnexis.ca or dial 416-524-2152.


Source link

]]>
https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/feed/ 0
DC Circuit Rejects New Applications for Common Law Immunity by Private Contract Agents of Foreign Sovereigns Suspected of Participating in State-Sponsored Hacking Program https://prosecutebushcheney.org/dc-circuit-rejects-new-applications-for-common-law-immunity-by-private-contract-agents-of-foreign-sovereigns-suspected-of-participating-in-state-sponsored-hacking-program/ https://prosecutebushcheney.org/dc-circuit-rejects-new-applications-for-common-law-immunity-by-private-contract-agents-of-foreign-sovereigns-suspected-of-participating-in-state-sponsored-hacking-program/#respond Wed, 08 Sep 2021 07:00:00 +0000 https://prosecutebushcheney.org/dc-circuit-rejects-new-applications-for-common-law-immunity-by-private-contract-agents-of-foreign-sovereigns-suspected-of-participating-in-state-sponsored-hacking-program/ In a notable ruling regarding the extent to which U.S. citizens acting on behalf of foreign sovereigns can claim immunity from civil lawsuits under U.S. law, the U.S. Court of Appeals for the DC Circuit upheld the refusal by the district court of ordinary foreign immunity in Broidy Capital Management LLC v. Muzin, n ° […]]]>

In a notable ruling regarding the extent to which U.S. citizens acting on behalf of foreign sovereigns can claim immunity from civil lawsuits under U.S. law, the U.S. Court of Appeals for the DC Circuit upheld the refusal by the district court of ordinary foreign immunity in Broidy Capital Management LLC v. Muzin, n ° 20-7040 (September 3, 2021). The ruling denied immunity requests from US lobbyists and public relations officers suspected of participating in a foreign government-sponsored hacking and media smear campaign targeting a US citizen on US soil.

The ruling sets strict limits on the ability of private contractors to claim derivative foreign state immunity under federal common law. Particularly where the foreign government has not sought immunity from the State Department or otherwise sought legal protection for its alleged agents, U.S. private contractors of a foreign government bear an especially heavy burden to establish common immunity. law. And the complete lack of established practice in the United States to recognize the immunity of these private contractors, coupled with the absence of allegations that the foreign government specifically directed the tort conduct in question, supported the refusal of the immunity.

The plaintiffs in this case are Elliott Broidy, an American businessman who once served as vice president of finance for the Republican National Committee, and his company. The complaint alleged that in response to the complainants’ harsh criticism of the State of Qatar’s support for terrorist organizations, Qatar retaliated with the aim of damaging Broidy’s reputation. The complaint alleged a scheme in which Qatari-sponsored hackers infiltrated Broidy’s computer networks and stole confidential information. Aided by the defendants – US lobbyists and public relations professionals – the conspirators then distributed pirated materials to the media in an attempt to destroy Broidy’s reputation and his ability to influence US policy towards Qatar.

In one of a series of conspiracy cases, Broidy sued several US citizens (and a US public relations consultancy) allegedly involved in the Qatari venture in a District of Columbia Federal District court. . The complaint alleged violations of California state law as well as federal laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), the Stored Communications Act, the Computer Fraud and Abuse Act, and the Defend Trade Secrets Act. The defendants claimed they were immune from prosecution for their alleged role in the Qatari business and requested dismissal, arguing both “derivative” foreign sovereign immunity and common law immunity. “foreign officials”. The district court rejected both forms of immunity and concluded that several of the plaintiffs’ claims had been sufficiently argued and could therefore continue to be discovered.

The DC Circuit upheld the district court’s denial of immunity in a unanimous opinion from Judge Pillard, joined by Justices Randolph and Walker.

In dismissing the defendants’ immunity claims, the court began by recognizing that immunity is not available under the Foreign Sovereign Immunity Act (FSIA). Quoting Samantar v. Yousuf, 560 US 305, 325 (2010), the court noted that the FSIA deals with immunity only for foreign states and their subdivisions and agencies or political bodies, and not for individuals. As Samantar However, individuals can also claim immunity under common law.

Under Samantar, these claims are governed by a two-step analysis. First, the court asks if the US State Department made a “suggestion of immunity” on behalf of the defendants. If this is the case, the court will generally respect this suggestion and dismiss the lawsuit. But there was no suggestion of immunity here. Indeed, the Court considered “notable” that Qatar, “on whose behalf the defendants are said to have acted, has shown no interest in this case, whether by requesting a formal suggestion of immunity or otherwise”.

The DC circuit therefore proceeded to Samantar ‘s second stage, in which a court must decide for itself whether immunity is appropriate. Second-step courts typically seek to determine whether the asserted immunity claim is an established State Department policy to recognize, including reviewing past State Department decisions regarding immunity. Here, the DC Circuit concluded that past State Department practice did not support immunity for individuals where, like here, the foreign state did not seek immunity on their behalf and they simply acted as arm’s length entrepreneurs for that foreign state. Notably, the Court ruled that foreign official immunity could not be based on the mere fact that certain defendants were registered for Qatari agents under the Foreign Agents Registration Act: “[N]the State Department has never suggested, nor has this court ruled, that registered foreign agents are entitled to sovereign immunity of their principals under the law. “

Finally, the “close ties of the parties and claims against the United States” count against immunity. The defendants were all US citizens, and the court cited previous State Department statements that those enjoying the protections of US law should normally be subject to the jurisdiction of US courts when they violate US law, especially when being sued by other US citizens for driving in the United States. None of these factors can be determinative by themselves, but taken together they weigh heavily against common law immunity.

The DC Circuit also rejected the defendants’ alternative argument, which invoked an alleged doctrine of “derivative” foreign sovereign immunity. The court raised significant doubts as to the existence of such a doctrine, derived from cases involving American entrepreneurs claiming immunity from the federal government: “This court has never suggested that a doctrine of immunity derivative could apply in the context of foreign sovereign immunity ”. But even if that were the case, the domestic entrepreneur business from which it would derive only allows such derivative immunity when the contested actions have been “specifically ordered” or “directed” by the foreign sovereign. This was not the case here, where (according to the complaint) the defendants’ agreement with Qatar left them a great deal of latitude in how to achieve their objectives.

Broidy strongly suggests that U.S. citizens and residents who violate U.S. law as agents of foreign sovereigns will not be able to claim foreign conduct-based immunity at common law absent a suggestion of immunity from the Department of ‘State. And the ruling leaves claims of foreign sovereign immunity “derivative” on uncertain grounds in the DC circuit, but clearly denying such immunity in the absence of clear claims that the foreign government directed the conduct at issue.


Source link

]]>
https://prosecutebushcheney.org/dc-circuit-rejects-new-applications-for-common-law-immunity-by-private-contract-agents-of-foreign-sovereigns-suspected-of-participating-in-state-sponsored-hacking-program/feed/ 0
Common Law: Mandate of the school mask – what is the current state of the law? – Columns https://prosecutebushcheney.org/common-law-mandate-of-the-school-mask-what-is-the-current-state-of-the-law-columns/ https://prosecutebushcheney.org/common-law-mandate-of-the-school-mask-what-is-the-current-state-of-the-law-columns/#respond Thu, 02 Sep 2021 17:14:28 +0000 https://prosecutebushcheney.org/common-law-mandate-of-the-school-mask-what-is-the-current-state-of-the-law-columns/ I am super confused. I know AISD has a mask warrant. But I also know Governor Abbott doesn’t want masks. And I know there have been a ton of battles in court in recent weeks over who should decide. But honestly, I have no idea what the current state of affairs is. Are masks still […]]]>

I am super confused. I know AISD has a mask warrant. But I also know Governor Abbott doesn’t want masks. And I know there have been a ton of battles in court in recent weeks over who should decide. But honestly, I have no idea what the current state of affairs is. Are masks still mandatory in Austin schools? Is the governor’s no-mask rule still in place?

Yes and yes. You are right, it can all be confusing. The situation is fluid, with courts at all levels in Texas having rendered conflicting decisions in the past month. Here is a brief summary of the events of August and the current situation at the end of August 2021.

Governor Abbott previously issued an executive order (Executive Order GA-36) that ended the statewide mask mandate. The ordinance expressly prohibits local governments from requiring that a person wear a mask. to wear a face cover “). The order extends to public schools, where at present “no student, teacher, parent or other staff member or visitor may be required to wear a face covering.”

Many counties, towns and independent school districts (ISDs) have either openly challenged the order or ignored it altogether, continuing with school mask mandates. Ken Paxton, the state attorney general, has released a list of more than fifty local government entities that he says are not complying with the governor’s order. The fundamental question is which government officials – the governor or locally elected officials – should have the legal capacity to decide what the government’s position should be on school mask mandates.

The counties of Dallas and Bexar took the lead in challenging the governor’s order by filing a temporary restraining order, which essentially asked local district court judges to authorize the county and independent school district (ISD ) to apply the mask warrant on a temporary basis pending future merits proceedings. District court judges ruled in favor of local governments and authorized school mask warrants as an interim litigation over the issue ensued. Austin / Travis County filed a similar lawsuit and obtained a similar ruling from a local Travis County district court.

Paxton’s office appealed some of those decisions to the Texas Supreme Court, the highest civil court in Texas, where all nine justices are Republican. After settling some procedural irregularities, the Supreme Court finally ruled against the local governments. The Supreme Court has ruled that the “status quo” of allowing the governor to ban mask warrants will continue while lower courts deal with the substantive issue.

The city of Austin and Travis County, which were not parties to the Texas Supreme Court case, continue to order the wearing of masks in public buildings and schools so that AISD continues to enforce the mandate of masks. Travis County Judge Andy Brown recently said “[u]Until we find ourselves in a dispute directly with the governor, we will maintain our requirement that public schools require masks in place. “

Please submit topic suggestions, questions and comments to thecommonlaw@austinchronicle.com. Submitting potential topics does not create an attorney-client relationship, and any information submitted is likely to be included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute or replace legal advice. For advice on your specific facts and circumstances, consult a licensed lawyer. You can contact the Lawyer Referral Service of Central Texas, a nonprofit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.


Source link

]]>
https://prosecutebushcheney.org/common-law-mandate-of-the-school-mask-what-is-the-current-state-of-the-law-columns/feed/ 0
Common Law Chief Justice Appears Before Supreme Court https://prosecutebushcheney.org/common-law-chief-justice-appears-before-supreme-court/ https://prosecutebushcheney.org/common-law-chief-justice-appears-before-supreme-court/#respond Fri, 13 Aug 2021 07:00:00 +0000 https://prosecutebushcheney.org/common-law-chief-justice-appears-before-supreme-court/ The Common Law Division of the Supreme Court of New South Wales has had a new Chief Justice. The Honorable Justice Robert Beech-Jones will assume this role following the retirement of the Honorable Justice Clifton Hoeben AM RFD from the Supreme Court on August 31. Justice Beech-Jones was admitted as a lawyer in 1988 after […]]]>

The Common Law Division of the Supreme Court of New South Wales has had a new Chief Justice.

The Honorable Justice Robert Beech-Jones will assume this role following the retirement of the Honorable Justice Clifton Hoeben AM RFD from the Supreme Court on August 31.

Justice Beech-Jones was admitted as a lawyer in 1988 after graduating with honors from the Australian National University in law. He was admitted to the Bar in 1992.

“During the 20 years served at the bar by Justice Beech-Jones, he handled a wide range of cases, including criminal law, immigration law, social security and administrative law and commercial law. Said Attorney General Mark Speakman.

“He is a man of great intellectual capacity and great integrity.”

In addition to congratulating Judge Beech-Jones, Mr. Speakman paid tribute to Judge Hoeben.

“Justice Hoeben was elevated to the Supreme Court bench in 2004 after a distinguished bar career,” said Mr. Speakman.

“He is a man who has a formidable legal mind, as well as deep insight and the highest courtesy, and who will leave a long legacy in the legal field.”

Common Law Chief Justice Appears Before Supreme Court




weekly lawyers logo


Last updated: August 12, 2021

Posted: Aug 13, 2021

Do you know any outstanding women in the legal industry leading the charge? Recognize these women as role models for future women leaders in law by nominating them for the 2021 Women in Law Awards. Not only will you showcase their accomplishments and propel their careers, you will also take the first step in giving them the recognition they deserve .
Visit womeninlaw.com.au


Source link

]]>
https://prosecutebushcheney.org/common-law-chief-justice-appears-before-supreme-court/feed/ 0
More You Know: Supreme Court of Canada Clarifies Common Law’s Discoverability Principle – Litigation, Mediation and Arbitration https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/ https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/#respond Thu, 05 Aug 2021 07:00:00 +0000 https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/ To print this article, simply register or connect to Mondaq.com. Although procedural in nature, limitation periods are among the most important rules for litigants and litigants — taking too long to present your claim, and you may be prevented from seeking redress. Fortunately, the discoverability principle generally rules out the limitation period before the claimant […]]]>

To print this article, simply register or connect to Mondaq.com.

Although procedural in nature, limitation periods are among the most important rules for litigants and litigants — taking too long to present your claim, and you may be prevented from seeking redress. Fortunately, the discoverability principle generally rules out the limitation period before the claimant knows they have a claim. But decisive when whether a claimant discovered or should have discovered a claim is a contextual issue based on the claimant’s knowledge of material facts. In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, the Supreme Court of Canada clarified the role of the common law rule of discoverability in the application of provincial limitation laws, and the standard of knowledge required to “discover” a claim under of the common law standard.

What would you like to know

  • Limitation statutes can codify, limit or oust the common law rule of discoverability.
  • Whether a statute of limitations has changed or ousted the common law rule is a matter of statutory interpretation. Clear legislative language is needed to oust the common law rule.
  • The degree of knowledge required to uncover a claim is “a plausible inference of responsibility”, more than mere suspicion or speculation, but less than certainty.

Background

In 2008, Atcon Group of Companies asked the Province of New Brunswick to guarantee certain loans it needed to meet its financial obligations. The province has agreed to provide the guarantees, on condition that Atcon receives an external review of its assets by an audit firm. The province has agreed that Atcon’s auditor Grant Thornton could conduct the external review.

In its audit report, Grant Thornton considered Atcon’s statements to be a fair representation, in all material respects, of Atcon’s financial condition. Based on Grant Thornton’s audit, the province turned over the loan guarantees to Acton.

Shortly thereafter, Atcon’s financial situation deteriorated and the lender asked the province to pay the loan guarantees. The province paid the guarantees and, at the same time, retained the services of an audit firm to perform a review of the same financial statements reviewed by Grant Thornton. The province’s audit firm provided a different report than Grant Thornton’s: Acton’s financial statements were not in accordance with GAAP and contained various material errors, including an overestimation of its assets and net income. This report was provided to the province in draft form on February 4, 2011. The report was finalized on November 30, 2012, with only minor grammatical changes.

On December 12, 2012, the Deputy Minister of Economic Development filed a formal complaint against Grant Thornton, attaching the province’s audit report. A year and a half later, on June 23, 2014, the province sued Grant Thornton for negligence. Grant Thornton requested that the province’s claim be summarily dismissed on the basis that it was prescribed by the two-year limitation period.

Two approaches to discoverability

Grant Thornton’s motion was about the standard to be applied in determining whether a claimant possesses the requisite level of knowledge to have “discovered” a claim, which triggers the two-year limitation period. As in most provinces, New Brunswick statute of limitations provides that a claim is discovered when a claimant “knew or should reasonably have known” of certain material elements of the claim.

The Motions Judge rendered summary judgment, finding that the province “knew or should have known” that it had At first glance grounds for inferring that she had a potential cause of action against the defendants as of the date she paid $ 50 million to repay the Atcon loan. In the alternative, he concluded that the province had the requisite knowledge when it received the draft report from its audit firm in February 2011.

The Court of Appeal reversed the decision, finding that the motions judge had applied the wrong test in considering “prima facie grounds for inferring … a potential cause of action”. Instead, the Court of Appeal determined that until Grant Thornton produced its audit-related records for the province’s inspection (which it refused to do), the province could not not know that the verification was not compliant.

The Supreme Court’s decision

The Supreme Court unanimously overturned the Court of Appeal’s decision and restored the motions judge’s ruling that the province’s claim was time-barred. However, he rejected the approaches to discoverability applied by the two lower courts. The Court (1) ruled on the role of the common law discovery rule in the application of the limitation period and (2) affirmed that a claim is discovered when a plaintiff has knowledge, real or suspected, material facts upon which a “plausible inference claim” of liability on the part of the defendant can be drawn.

The discoverability of the common law

The Supreme Court began its analysis with a review of the common law discovery rule: “a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been or would have been discovered. had to be discovered by the applicant through the exercise of due diligence.1 The rule seeks both to avoid the unfairness of excluding a claim before the claimant becomes aware of it and to realize the underlying rationale for limitation periods (the guarantee of rest, the risk of stale evidence, and the hope that the complaints will be pursued quickly).

The Court explained that the common law rule is an interpretive tool for interpreting limitation statutes. However, provincial statutes of limitation can codify, limit or oust the common law rule. Although the Court noted that the extent to which the common law rule applies is a matter of statutory interpretation, “clear legislative language” is necessary to set aside the common law rule.

After reviewing New Brunswick’s discoverability provision, the Court ruled that it codified the common law rule of discoverability.

The degree of knowledge required

The court disagreed with either court below on the level of knowledge required to uncover a claim and trigger the limitation period. Instead, he held that “a claim is discovered when a claimant has knowledge, real or suspected, of material facts upon which a plausible inference of liability on the part of the defendant can be drawn.” Where the provision sets out material facts of which the applicant must have actual or presumed knowledge, the terms of that provision shall prevail.

What is a “plausible inference” of liability? The Court held that this is a case which gives rise to a “permissible inference of fact”. The standard requires more than mere suspicion or speculation, but does not go so far as to require certainty of responsibility. A claimant does not need to know the exact type of harm they suffered or the extent or cause of the harm in order for the limitation period to begin to run.

The Court held that it is permissible to assess both direct evidence and circumstantial evidence to determine the state of knowledge of a claimant. If the evidence shows that the claimant should have discovered the material facts by exercising due diligence, implied knowledge will be established.

In that case, the Court found that the Province had actual or suspected knowledge of its claim against Grant Thornton as of the date it received its auditor’s interim report indicating that Atcon had made various material errors in its financial statements. . The Court of Appeal had set too high a standard by requiring the province to be aware of the constituent elements of negligence, as this might require a claimant to be aware of facts – such as a breach of a standard of care – which do not could only be known through the process of discovery. The province did not need access to the files relating to Grant Thornton’s audit to infer a breach of the standard of care.

The unanswered question

While the Supreme Court said that a statute of limitations would begin to run when the plaintiff should have discovered the material facts by exercising “due diligence”, Grant Thornton did not give the Court an opportunity to rule on what constitutes due diligence. This issue is an often contentious and fact-specific issue that is likely to remain an important feature of limitation disputes.

Footnote

1 Central Trust Co. v Rafuse, [1986] 2 SCR 147, at p 224, citing Kamloops (City of) vs. Nielsen, [1984] 2 RCS 2; see also Ryan vs. Moore, 2005 SCC 38, [2005] 2 SCR 53, at paragraphs 2 and 22

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


Source link

]]>
https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/feed/ 0
Does common law marriage exist in Scotland? https://prosecutebushcheney.org/does-common-law-marriage-exist-in-scotland/ https://prosecutebushcheney.org/does-common-law-marriage-exist-in-scotland/#respond Mon, 26 Jul 2021 09:11:15 +0000 https://prosecutebushcheney.org/does-common-law-marriage-exist-in-scotland/ The answer? In short, no. In the past, there were legal / cultural norms that made marriage virtually essential for couples. There are many reasons why a couple may choose not to marry or enter into a civil partnership – and it is increasingly common not to do so. Arguably, the cohabitant rights law has […]]]>

The answer? In short, no.

In the past, there were legal / cultural norms that made marriage virtually essential for couples. There are many reasons why a couple may choose not to marry or enter into a civil partnership – and it is increasingly common not to do so.

Arguably, the cohabitant rights law has yet to catch up with the way many people now choose to live their lives. For this reason, Scottish law in this area is currently under review by the Scottish Law Commission.

Common law marriage” in Scotland

For many people, it is not clear whether ‘common law marriage’ exists in Scotland. Contrary to popular belief, this is not a legal status in Scotland.

Common-law marriage is a colloquial term sometimes used to describe a couple who live together but have not formalized their relationship by marrying / entering into a civil partnership.

What we have in Scotland, however, are legal rights for “cohabitants”. The Cohabitation Act was born out of an amendment to the law on 4 May 2006 (Family Law Act (Scotland) 2006, Articles 25-29).

Cohabitation with habit and reputation “vs” common-law relationship “

There was an outdated form of ‘irregular’ marriage in Scotland called ‘cohabitation with habit and reputation’. It is this legal concept that people sometimes call “common law marriage”.

Following the modification of the law in 2006, cohabitation with habit and reputation was almost completely abolished.

It is still possible in certain circumstances (ie couples who started cohabiting before May 4, 2006) to take legal action on this basis, but it is not common to do so.

Which couples would be considered cohabiting?

The starting point is that the cohabitants are a couple living as a couple as if they were married or in a civil partnership.

To determine if a couple was cohabiting, the factors to consider are:

  • how long the couple have lived together (even a relatively short period may be sufficient);
  • how their lives and finances were intertwined;
  • if the couple’s social circle saw cohabitants as a couple, rather than simply as friends / roommates.

If a cohabiting couple separates, what are their rights towards each other?

Unfortunately, there are no automatic rights.

When a cohabiting couple separates, there are certain claims on which either cohabitant can rely to seek financial compensation or assert certain other rights.

These complaints are as follows: –

A right of occupancy is a right to live somewhere. Married / civil partnership couples have tenure rights to the house they lived in together (also known as the “family home”), regardless of who owns the house.

Cohabitants do not automatically have the right to continue living in accommodation owned / rented by their cohabiting partner (although special rules apply in cases of domestic violence).

However, it is possible for a partner to apply to a court for tenure rights. Whether or not a court grants occupancy rights would depend on individual facts and circumstances and the occupancy right would only apply for a prescribed period.

Cohabitants do not have the direct right to share anything of their partner’s property.

It is possible for a cohabitant to seek financial compensation from a court if he has suffered an “economic disadvantage” which has resulted in a corresponding “economic advantage” for the other cohabitant, the main objective being to correct imbalances and find a way out which is right.

Whether or not a court will award financial compensation is decided on a case-by-case basis, with the court exercising its discretion to decide the issues. This may include a lump sum, a payment to recognize any economic burdens of child care, and any other interim orders the court deems appropriate.

This type of complaint has a strict deadline and must be initiated in one year of the couple ceasing to live together. There is a very limited exception to this rule, if one of the cohabitants is in another country and the couple is engaged in mediation.

What happens if a cohabitant dies?

If a cohabitant dies without a will, there is no automatic legal right for the surviving cohabitant to share the deceased’s “estate” (the property he left behind).

However, the survivor can go to court. within six monthsof the death of their partner to be allocated part of the deceased’s net “intestate” estate (click here for more information on intestate inheritance), or to have a certain asset transferred.

The Court has a wide discretion as to whether or not to grant such compensation.

Click here to find out more about the legal situation if a partner dies without a will.

Is there anything the cohabitants can do to gain more security or legal certainty?

There are measures that cohabiting couples can take to mitigate the fact that they do not have the same level of legal protection as those who are married or in a civil partnership, such as: –

  • Conclude a “Cohabitation Agreement”

A cohabitation agreement is a contract that can be used to formalize how property / finances will be handled by a cohabiting couple. Click here to learn more about cohabitation agreements.


Source link

]]>
https://prosecutebushcheney.org/does-common-law-marriage-exist-in-scotland/feed/ 0
What would you like to know https://prosecutebushcheney.org/what-would-you-like-to-know/ https://prosecutebushcheney.org/what-would-you-like-to-know/#respond Sun, 25 Jul 2021 07:00:00 +0000 https://prosecutebushcheney.org/what-would-you-like-to-know/ There are misconceptions about what constitutes a common-law marriage. The most common assumption is that if you live together for a certain number of years, you automatically have a common-law relationship. This is not true, and there are other requirements to be met as well. What is a de facto marriage? A common-law marriage is […]]]>

There are misconceptions about what constitutes a common-law marriage. The most common assumption is that if you live together for a certain number of years, you automatically have a common-law relationship. This is not true, and there are other requirements to be met as well.

What is a de facto marriage?

A common-law marriage is a legal marriage between two people (same sex or heterosexual) who have not organized a marriage ceremony or filed a marriage license.

Providing a general definition of common-law marriage is difficult because laws vary from state to state. Today, few states allow new common law marriages. No common law state requires the exact number of years you must live together to be in a valid common law marriage.

“Common law marriage is a doctrine created by the courts that says that if a couple present themselves as a married couple for a number of years, but have not registered the marriage with the state, the couple will be considered married in the eyes of a court, ”says lawyer Kevin Tillson. “States have enacted laws recognizing these common law marriages, but severely limited their application.

Meet the expert

Kevin Tillson is the owner of the family-focused law firm Tillson Law PC in Sandy, Oregon. The firm’s expertise includes estate planning, probate and trust administration, business planning and real estate transactions.

Read on to find out everything you need to know about a common-law marriage.

The common law against marriage versus civil unions

Common-law marriage

Without a marriage license, your state may not have a way to document your common-law relationship. If you file for a divorce later, you may have legal difficulties with access rights, child support, property division, spousal support, medical rights, loss of survival and inheritance. .

“Oregon does not recognize common-law marriage, but in cases where the partners have separated, the courts in those situations will divide the assets based on each member’s contribution to the domestic partnership in the acquisition or increase in asset value over the course of the relationship. ”Says Tillson. “No spousal support can be granted. Dividing retirement accounts, bank accounts, and anything else that is not jointly owned can be difficult. ”

The three main things to know about a common-law marriage:

  • You may be eligible for most state and federal benefits granted with traditional marriage. Consult an attorney in your state.
  • Most states will recognize a valid common law marriage.
  • It is necessary to end a common-law relationship with divorce proceedings.

Wedding

Mr. Tillson defines traditional marriage as “a civil contract between the state and the two people who marry. Marriage is a creation of law and must be registered with the state (the reason you receive a marriage certificate). In exchange for the conclusion of the civil contract, the State grants the two persons a certain number of statutory rights.

The top three things to know about marriage:

  • It is a legal status with automatic rights, federal benefits, tax breaks and responsibilities.
  • Divorce laws are precise and comprehensive.
  • Some state laws provide that a surviving spouse automatically inherits all assets.

Civil unions

As with common-law marriage, laws on civil unions and domestic partnerships vary from state to state. It is wise to consult a lawyer before deciding which one is best for you. “Before Oregon and many other states recognized same-sex marriages as legal, the legislature created civil unions or registered domestic partnerships,” says Tillson. “Civil unions have been used as a workaround for states that were reluctant to remove the terms ‘man’ and ‘woman’ from the definition of marriage. Laws establishing civil unions gave individuals the same rights as those whose married couples were registered with the state, in the same way as a marriage.

In Oregon, the term “registered” is essential because in order to benefit from the rights of a married couple, the domestic partnership must be registered with the state. In Oregon, only same-sex couples can register a domestic partnership. After you register a domestic partnership or civil union, most state laws that apply to married couples apply to domestic partners.

The biggest difference between a marriage and a civil union is found under federal laws. Civil union does not guarantee that a couple has federal rights, except as expressly provided by the federal government.

The top three things to know about civil unions:

  • Same-sex marriages are legal in all 50 states and DC, so most states now recognize existing civil unions as legal marriages; therefore, fewer states offer civil union as an option.
  • You cannot file federal taxes jointly. Surviving spouse veteran benefits may not apply to civil unions.
  • Provides all the benefits of the state of marriage.

Requirements for a common-law marriage

Laws vary from state to state, so it’s best to contact your lawyer with any specific questions or concerns.

  • Both members of the couple should consider themselves living together as a married couple for a number of years.
  • The couple must present themselves as a married couple. They could open a joint bank account, buy property together, designate their partner as “my spouse” or share the same last name, file taxes jointly, wear wedding rings, etc., in a state that recognizes common-law marriage. .
  • Must be single and of legal age to marry.

States allowing common-law marriage

Only a few states still allow the establishment of common law marriages:

  1. Colorado: A de facto marriage contracted on or after September 1, 2006, is valid if, at the time the marriage was concluded, both parties are 18 years of age or over; there is evidence of mutual agreement and marriage is not prohibited by any other law. (Colorado Statute §14-2-109.5)
  2. Iowa: De facto marriage is intended for the maintenance of dependents. Otherwise, it is not explicitly prohibited. (Iowa Code §595.1A)
  3. Kansas: The State of Kansas will not recognize a common law marriage contract if either party to the marriage is under the age of 18. (Kan Statute §23-2502)
  4. Montana: Each applicant must be able to contract marriage by mutual consent, cohabitation and public notoriety. (MCA. Stat. §40-1-202 and MCA. Stat. §40-1-403)
  5. New Hampshire: People who cohabit and recognize themselves as husband and wife, and generally deemed to be such, for a period of three years, and until the death of one of them, will then be deemed to be legally married. (NH Stat. §457: 39). It is used to determine probate when the surviving spouse applies to the inheritance court for the estate of the deceased partner.
  6. Texas: Any marriage presumed valid. Refers to “informal marriage” and requires a signed marriage declaration to prove informal marriage in legal, administrative or other proceedings. (Tex. Family law §1.101; Tex. Family law §2.401-2.402)
  7. Utah: Recognizes marriage that is not celebrated as legal, if a judicial or administrative decision establishes that it results from a contract between a man and a woman. Other requirements apply. (Utah Statute §30-1-4.5)
  8. District of Colombia recognizes de facto marriage and, with Rhode Island and Oklahoma; validity is usually decided by case law.
  9. Caroline from the south: The South Carolina Supreme Court judge abolished unlicensed marriage on July 24, 2019.


Source link

]]>
https://prosecutebushcheney.org/what-would-you-like-to-know/feed/ 0
Common law admission test [CLAT 2021] Today in 147 centers across the country https://prosecutebushcheney.org/common-law-admission-test-clat-2021-today-in-147-centers-across-the-country/ https://prosecutebushcheney.org/common-law-admission-test-clat-2021-today-in-147-centers-across-the-country/#respond Thu, 22 Jul 2021 07:00:00 +0000 https://prosecutebushcheney.org/common-law-admission-test-clat-2021-today-in-147-centers-across-the-country/ The CLAT-2021 will take place tomorrow from 2:00 p.m. to 4:00 p.m. across the country. 70,277 applicants seeking admission to various national law universities must take the pen-and-paper test; 59843 for the undergraduate and 10434 for the postgraduate program. In view of the pandemic situation, the Consortium of National Law Universities directed its 147 centers […]]]>

The CLAT-2021 will take place tomorrow from 2:00 p.m. to 4:00 p.m. across the country. 70,277 applicants seeking admission to various national law universities must take the pen-and-paper test; 59843 for the undergraduate and 10434 for the postgraduate program. In view of the pandemic situation, the Consortium of National Law Universities directed its 147 centers across the …

The CLAT-2021 will take place tomorrow from 2:00 p.m. to 4:00 p.m. across the country. 70,277 applicants seeking admission to various national law universities must take the pen-and-paper test; 59843 for the undergraduate and 10434 for the postgraduate program.

Given the pandemic situation, the Consortium of National Law Universities has asked its 147 centers across the country to provide seats at less than 50% of actual seating capacity. The Consortium and National Law Universities have established links with state and local governments for the smooth running of CLAT-2021. Vaccination is not compulsory and unvaccinated candidates have the right to be tested.

The CLAT for the first cycle consists of 150 multiple-choice questions for 150 points and the third cycle test consists of 120 multiple-choice questions of one point each. The main answer key along with the main questions booklet will be posted on the Consortium of National Law Universities website tomorrow evening.


Source link

]]>
https://prosecutebushcheney.org/common-law-admission-test-clat-2021-today-in-147-centers-across-the-country/feed/ 0
Cabinet nod to allow Muslim marriages in Sri Lanka, divorces under common law https://prosecutebushcheney.org/cabinet-nod-to-allow-muslim-marriages-in-sri-lanka-divorces-under-common-law/ https://prosecutebushcheney.org/cabinet-nod-to-allow-muslim-marriages-in-sri-lanka-divorces-under-common-law/#respond Tue, 20 Jul 2021 07:00:00 +0000 https://prosecutebushcheney.org/cabinet-nod-to-allow-muslim-marriages-in-sri-lanka-divorces-under-common-law/ ECONOMYNEXT – Sri Lanka’s Cabinet of Ministers has approved a proposal to allow Muslims to marry under the Marriage Registration Ordinance because the provisions of the Muslim Marriage and Divorce Act (MMDA) were found to discriminate against women, the cabinet office said. A cabinet statement said that under article 12 of the constitution no citizen […]]]>

ECONOMYNEXT – Sri Lanka’s Cabinet of Ministers has approved a proposal to allow Muslims to marry under the Marriage Registration Ordinance because the provisions of the Muslim Marriage and Divorce Act (MMDA) were found to discriminate against women, the cabinet office said.

A cabinet statement said that under article 12 of the constitution no citizen should be discriminated against on the basis of race, religion, language, caste, sex, political opinion or place of birth. However, according to the statement, the MMDA contains provisions that discriminate against women, as various women’s organizations belonging to the Muslim community have pointed out.

Muslim activists and women’s rights organizations have for years called for reforms to the MMDA, a 1951 law drafted and passed by men.

“Therefore, under the common law governing the marriage and divorce of the citizens of Sri Lanka, it has become appropriate to provide them with other possibilities to also regulate the marriage and divorce of members of the Muslim community,” said said the cabinet statement.

“The cabinet approved a proposal submitted by Justice Minister Ali Sabry in this regard,” he added.

Minister Sabry proposed to amend the Code of Civil Procedure and the Code of Civil Procedure which contain the Marriage Procedure for Muslims to Marry, the Marriage Registration Ordinance.

In recent weeks, Muslim activists have pointed out that women in the community do not sign their own marriage contract but rather have a “Wali of the Bride (male guardian of the bride) signing in her place.”

Activists stressed that this allows a great openness for forced marriages.

In February, Minister Sabry told parliament that a proposal had been submitted to raise the age limit for marriage to 18, Qazi women to perform marriages, allow Muslim women to sign their marriage contract.

A ten-member advisory committee was also appointed to amend the Constitution on the basis of the said proposals. (Colombo / Jul20 / 2021)


Source link

]]>
https://prosecutebushcheney.org/cabinet-nod-to-allow-muslim-marriages-in-sri-lanka-divorces-under-common-law/feed/ 0