case law – Prosecute Bush Cheney http://prosecutebushcheney.org/ Sun, 17 Apr 2022 08:24:02 +0000 en-US hourly 1 https://wordpress.org/?v=5.9.3 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png case law – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 Judicial deference, liberty and common law https://prosecutebushcheney.org/judicial-deference-liberty-and-common-law/ Wed, 08 Dec 2021 19:48:00 +0000 https://prosecutebushcheney.org/judicial-deference-liberty-and-common-law/ [ad_1] December 8, 2021 2:48 p.m. ET Photo: Getty Images / iStockphoto In treating the advent of judicial review as a “radical development,” Judge Raymond Kethledge’s review of Randy Barnett and Evan Bernick’s “The Original Meaning of the 14th Amendment” (Bookshelf, November 30) is off to a bad start. privileging the right of autonomy over […]]]>


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December 8, 2021 2:48 p.m. ET


Photo:

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In treating the advent of judicial review as a “radical development,” Judge Raymond Kethledge’s review of Randy Barnett and Evan Bernick’s “The Original Meaning of the 14th Amendment” (Bookshelf, November 30) is off to a bad start. privileging the right of autonomy over that of individual freedom. The power of judges to overrule democratic decisions was at least implicit in the Declaration of Independence, where freedom comes first and self-government second, as a means to freedom, but only within our limits. Written constitution as interpreted by our courts. To consider the contrary is to make the majority judge in its own case and to deprive the Constitution of its power to discipline the people.

As I wrote here decades ago (“Rethinking Judicial Restraint,” op-ed, February 1, 1991), Robert Bork, upon whose authority Justice Kethledge relies, overturned that order. He, like Justice Kethledge, was at times an original on unenumerated rights and the authority of judges to recognize them. Because the text of the Ninth Amendment, although broad, is clear. Rights not listed are not to be “denied or denigrated”, which is precisely what judicial deference does to political branches. Rhythm Judge Kethledge, “not counted” does not mean “absent from the written Constitution”. Like privileges or immunities, due process and equal protection, rights not listed are found in the text of the Constitution. If we were to deny or disparage these general texts, as Bork often did, we would be at the mercy of state legislatures that have banned parish school education, interracial marriage, broad forms of economic freedom and more.

Can judges abuse or disregard their authority? They can and have. But the answer to bad judgment is not judicial deference, as Justice Kethledge has recognized elsewhere. It is better to judge, towards which MM. Barnett and Bernick provided a valuable guide.

Roger Pilon, Ph.D., JD

Caton Institute

Washington

Mr. Kethledge’s review could have presented the argument more appropriately as a duel between customary practice, as articulated by the common law, itself based on case law, and formal written law. When Chief Justice Edward Coke, in The case of Dr Bonham (1610), quoted in the review, declared statutory law “void” if it went against the common law, he observed an empirical truth. The statutes that did so have invariably become dead letters even while remaining on the books. The “privileges and immunities” clause of the 14th Amendment was surely intended to honor common law over statutory formalism, a relationship that modern originalists, drawing on the tradition of Roman civil law, sought to reverse.

Em. Teacher. Albion M. Urdank

University of California, Los Angeles

Copyright © 2021 Dow Jones & Company, Inc. All rights reserved. 87990cbe856818d5eddac44c7b1cdeb8

Appeared in the print edition of December 9, 2021 under the title “Judicial deference, liberty and common law”.

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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/ [ad_1] 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 […]]]>


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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.

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Common law and Equitable LLC dissolution: Going, Going,. . . | Farrell Fritz, PC https://prosecutebushcheney.org/common-law-and-equitable-llc-dissolution-going-going-farrell-fritz-pc/ https://prosecutebushcheney.org/common-law-and-equitable-llc-dissolution-going-going-farrell-fritz-pc/#respond Mon, 19 Jul 2021 07:00:00 +0000 https://prosecutebushcheney.org/common-law-and-equitable-llc-dissolution-going-going-farrell-fritz-pc/ [ad_1] Recently, we wrote two articles focusing on the ongoing dispute over whether New York law recognizes a viable cause of action for the “ordinary” or “fair” dissolution of a limited liability company. . In October 2020, I blogged on a dismissal decision prior to response in Pachter vs. Winiarsky, in which a New York […]]]>


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Recently, we wrote two articles focusing on the ongoing dispute over whether New York law recognizes a viable cause of action for the “ordinary” or “fair” dissolution of a limited liability company. .

In October 2020, I blogged on a dismissal decision prior to response in Pachter vs. Winiarsky, in which a New York court first upheld an application to dissolve a common law LLC, even when the court, in the same decision, held that the petition failed to apply for legal dissolution under Article 702 of the Law on Limited Liability Companies.

In May 2021, Pierre Mahler blogged on a second dismissal decision prior to response in the Pachter case, in which the court considered the sufficiency of a petition / complaint amended filed after the issuance of the initial dismissal decision. In the second Pachter decision, the court essentially reversed, dismissed the common law / equity application for dissolution, but reinstated the section 702 application for dissolution.

On July 12, 2021, Brooklyn Commercial Division Judge Leon Ruchelsman issued the third decision in the knock-down-drag-out Pachter litigation over whether the common law / equitable dissolution of an LLC exists as a viable cause of action in New York City. This decision was made through a petition from Pachter for leave to challenge the previous dismissal.

Supporting arguments

The legal arguments put forward by the parties are interesting, so I will devote some time to the briefs, which you can read here, here, and here.

In his moving papers, Pachter argued:

Equitable dissolution, also known as common law dissolution, is a well-established doctrine allowing members of LLCs to dissolve when the management of the LLC has engaged in certain “egregious conduct” towards the LLC or other members. See Lemle vs. Lemle, 92 AD3d 494, 500 (1st Dep’t 2012).

I would better describe this argument as a “stretch”. Lemlé was not an LLC dissolution case. The appeal decision in Lemlé involved multiple companies, but no LLCs. Lemlé certainly did not address the dissolution of the common law LLC, a topic that no New York appeals court has addressed directly (but we’ll get to that later). In fact, in another section of his brief, Pachter acknowledged the lack of guidance from the appeals court:

The Applicant acknowledges that the novelty and complexity of the issues in this case will almost certainly require appellate review. [but] rather than wait for approval by the appeal of the equitable dissolution — in which case the parties would have to repeat the discovery and trial — the best course of action would be to reinstate the claim and allow the discovery to be made. and the trial to move forward in the meantime on all of the issues raised in the amended complaint.

On the ultimate merits of whether New York law would recognize the dissolution of the common law LLC, Pachter drew an analogy with other areas of LLC case law where courts have recognized common law remedies not found in the written text of the LLC law, arguing:

Equitable dissolution applies to LLCs. In Tzolis vs. Wolff, 10 NY3d 100 (2008), the Court of Appeal held that all well-established equitable doctrines for the remedy of damages caused by trust companies are available in the context of the LLC in the absence of a “clear legislative mandate to the contrary “.

This is another “stretch”. We have written on Tzolis vs. Wolff Many times. While this may be the most important LLC case to date to reach the Court of Appeal, establishing the general principle that certain “fair” / “common law” doctrines apply to LLCs, it does not. She certainly did not go so far as to say that “” all well-established fair doctrines for redressing damages caused by trust companies are available in the LLC context, “unless prohibited by LLC law.

On the contrary, as Pachter pointed out in other sections of his brief, there are three main lines of case law important to equitable concepts applicable to other forms of LLC entity:

The gist of Pachter’s argument was that the court should draw inspiration from these three lines of authority and import a fourth into LLC law: equity / common law dissolution, which originates in corporate law. companies.

Opposition arguments

In their opposition brief, the respondents argued that the main LLC dissolution case in New York, Case of 1545 Ocean Ave, LLC, 72 AD3d 121 (2d Dept 2010), categorically prohibits any notion that the courts of New York could apply common corporate law dissolution standards to LLCs:

In . . . LLCL 702, the Legislature can only have wished that the standard of dissolution provided for therein remains the sole basis for the judicial dissolution of a limited liability company. In other words, since the legislature, in determining the criteria for the dissolution of various business entities in New York, did not intersect these grounds from one type of entity to another, it would be inappropriate for this Court to import the reasons for the dissolution of the Business Company Law or Company Law to the LLCL.

The speaker Kassab Decision

On June 22, 2021, the same day Pachter’s re-argumentation motion was submitted for decision, the Appeals Division – Department Two released two important new decisions (available here and here) in the Kassab litigation. Like I written a few weeks ago, one of the decisions contains the following language echoing Ocean Avenue: “The Limited Liability Company Law 702 provides the sole basis for the judicial dissolution of a limited liability company and includes a “stricter” standard than that for the dissolution of a company.”(Citations omitted; emphasis added).

The re-argumentation decision

In his decision, Ruchelsman J. rejected for the second time Pachter’s request to recognize a viable cause of action for the dissolution of the common law, rendering two essential legal decisions.

First, the court ruled:

In Case of 1545 Ocean Avenue . . . the court ruled that the only basis for the dissolution of a limited liability company was the grounds set out in the Law on Limited Liability Companies § 702, namely judicial dissolution and that it was inappropriate “to import the grounds for dissolving the Law on Commercial Companies or the Law on Limited Liability Companies. Liability company law. ‘ Indeed, there are no cases which apply anything other than judicial dissolution to limited liability companies. The fact that other remedies are available to limited liability companies, such as piercing the corporate veil or the business judgment rule, does not mean that other methods of dissolution are possible. [Although] The petitioner argues that there is no reason why equitable dissolution should be prohibited when it is available for entities which are so similar to limited liability companies. . . it is a political argument which cannot go beyond the clear directive of Case of 1545 Ocean Avenue. Indeed, this jurisdiction is bound by Case of 1545 Ocean Avenue which interpreted Law 702 on Limited Liability Companies as prohibiting any other form of dissolution.

Second, the court ruled:

The petitioner further claims that “the law supports the viability of an equitable dissolution”. While this is certainly true in the case of ordinary companies and it may well be that the applicant has demonstrated the sufficiency of proof necessary to obtain a fair dissolution in general, this is not at all true. when it comes to limited liability companies. The cases cited by the petitioner do not support such equitable dissolution for limited liability companies. Tzolis v. Wolff. . . ruled that derivative actions were permitted in a limited liability company, however, this has nothing to do with the possibility of other forms of dissolution. In addition, in Mizrahi v. Cohen. . . the dissolution that occurred was “judicial” in accordance with Law 702 on Limited Liability Companies. . Again, while arguments based on logic or common sense may seem compelling, at this time there is no basis for a dissolution of a limited liability company that is not judicial.

Rule of law after Pachter

In PachterIn the trio of common law decisions, the dissolution of the LLC has shown brief signs of promise as a new cause of action, but now appears to be of questionable origin unless an appeals court or another. trial court would not find such a claim viable under New York law.

For petitioners / complainants, one can understand the appeal of a catch-all and non-statutory dissolution request embracing “”flagrant breaches of fiduciary duty as a means of dissolving an LLC. As our regular readers know, with few exceptions, breach of fiduciary duty, oppression, or even exclusion from the LLC, is often not enough to establish grounds for dissolution under the standards of the LLC. Case of 1545 Ocean Ave. There is a growing body of case law rejecting at the pre-response stage petitions under Section 702 alleging these grounds for dissolution (you can read some of the recent examples we blogged about. here, here, here). There is also a growing number of appeal decisions affirming these revocation grants, even going so far as to overturn refusals of revocation (the most recent being Kassab last month; we find two others here and here).

All of this shows that the means for members to dissolve a New York LLC appears to be shrinking, not expanding, which makes the operating agreement all the more important. If desired, creative writers of operating agreements, especially those representing non-controlling members, might consider listing in the operating agreement the rights and obligations that the parties consider to be truly vital. , the violation of which may constitute grounds for dissolution under SARL Law 701 (2) allowing dissolution in the event of “the occurrence of events specified in the operating agreement”. While this rarely happens in practice, it can be an approach to try to anticipate and deal with the fact that under New York’s Judicial Dissolution Act breaking up may be difficult to do.

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Experience and expertise lead to successful common law claim for work-related injury in New South Wales – Employment and HR https://prosecutebushcheney.org/experience-and-expertise-lead-to-successful-common-law-claim-for-work-related-injury-in-new-south-wales-employment-and-hr/ https://prosecutebushcheney.org/experience-and-expertise-lead-to-successful-common-law-claim-for-work-related-injury-in-new-south-wales-employment-and-hr/#respond Tue, 13 Jul 2021 07:00:00 +0000 https://prosecutebushcheney.org/experience-and-expertise-lead-to-successful-common-law-claim-for-work-related-injury-in-new-south-wales-employment-and-hr/ [ad_1] Australia: Experience and expertise lead to successful common law claim for an injury at work in New South Wales July 13, 2021 Lawyers Hall Payne To print this article, simply register or connect to Mondaq.com. We recently acted for an employee who suffered a psychological injury at work in New South Wales following a […]]]>


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Australia: Experience and expertise lead to successful common law claim for an injury at work in New South Wales

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We recently acted for an employee who suffered a psychological injury at work in New South Wales following a death the worker witnessed. The worker won his case with his claim for compensation for industrial accidents and a claim for damages for industrial accidents (common law claim).

The injuries sustained by the worker were accepted as having left him with at least 15% overall impairment. Internal and external investigations took place into the incident at work and these helped us to argue that the worker’s injuries resulted from the employer’s negligence, paving the way for the common law claim. .

Finally, we were also able to provide Total and Permanent Disability (TPD) benefits for our client as part of his retirement pension policy. We provided medical evidence demonstrating that he could not return to his usual job, nor to any other job for which he had education, training or experience as set out in the definition of TPD from the fund. retirement.

Background

The case was complex and technical. Although the workers’ compensation insurer accepted responsibility and paid weekly compensation and medical treatment costs, the worker was fired and blamed for the death. An agreement was reached with the employer regarding the alleged unfair dismissal and an act (written agreement) was concluded between the employer and the worker.

Investigation of the workplace incident that resulted in the death of a worker

It was necessary to become familiar with the technical standards of safety at work as we had to provide assistance to the worker who was initially unfairly blamed for the death during the employer’s internal investigation.

We assisted the worker by reviewing the draft external investigation report and providing appropriate comments on that report. As a result of the internal investigation, an external investigation was conducted by a government agency and we supported the worker who was called as a witness in the employer’s successful criminal prosecution regarding the death of the worker.

Workers’ compensation, common law and TPD claims accepted

Following the conclusion of the investigation process and the court findings against the employer, we were able to pursue the claim for damages for workplace injuries and expedite it to a positive conclusion within a period of time. relatively short.

Over $ 1,000,000 successfully secured for injured worker

Initially, the insurer argued that the act of employment precluded the claim for industrial injury damages on the grounds that the sums paid for the wrongful dismissal were considered damages and we were able to counter this argument by citing recent case law. about. In addition, they denied that the employer was negligent and they blamed the worker for contributing to the accident, while the criminal case against the employer clearly proved that the employer was completely at fault. .

Finally, we reached an agreement with the insurer to pay the worker in excess of $ 1,000,000; the amount of compensation reflecting:

  • the severity of his injury affecting his ability to return to work;
  • its relative youth; and
  • the absence of contributory negligence.

Contributory negligence means that the worker caused or contributed to the injury by his own actions or by failing to take the necessary precautions. Such a finding will reduce the amount of damages payable to a worker. While initially the worker had been blamed for the accident, it became clear from the ancillary court findings regarding the lawsuits against the employer that only the employer was at fault.

Our client was particularly satisfied with the result

We were delighted to receive the following review from our client.

Positive: Professionalism, Quality, Responsiveness, Value

We had a complex personal injury case at work that required the team to learn highly specialized information in a particular area. They took the case and learned all the technical components with great enthusiasm.

They got the Total and Permanent Disability (TPD) application for us, which was also quite complex. We were also able to settle Worker’s Compensation Damages (WID) with the previous employer and were very pleased with the amount of our settlement that the team had worked hard to secure on our behalf.

From start to finish they were always available to discuss any questions we had and treated us honestly like family. We highly recommend working with Hall Payne.

In summary

If you are the victim of a workplace accident and you believe that your employer’s negligence contributed to your injuries, after filing your workers’ compensation claim, you should seek legal advice from a lawyer. experienced in workers’ compensation claims as soon as possible.

It is essential that you are informed from the outset of your right to lump sum compensation in order to enable your lawyers to investigate your right to ordinary damages. We will arrange an assessment of the person’s overall impairment as soon as possible, to maximize your chances of reaching the 15% threshold required to be eligible for a claim for injury at work.

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

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Why common law legal systems are better for business https://prosecutebushcheney.org/why-common-law-legal-systems-are-better-for-business/ https://prosecutebushcheney.org/why-common-law-legal-systems-are-better-for-business/#respond Mon, 21 Jun 2021 07:00:00 +0000 https://prosecutebushcheney.org/why-common-law-legal-systems-are-better-for-business/ [ad_1] When businesses have the option of choosing contract law for their transactions, they should always consider using a common law jurisdiction, in which the UK is preeminent, even for cross-border transactions and transactions with few connections. with the United Kingdom. The common law is based on precedents which are the product of contradictory argumentation […]]]>


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When businesses have the option of choosing contract law for their transactions, they should always consider using a common law jurisdiction, in which the UK is preeminent, even for cross-border transactions and transactions with few connections. with the United Kingdom.

The common law is based on precedents which are the product of contradictory argumentation and of an adaptation to the evolution of the business environment, while the codes provided for by the civil law courts attempt to lay down rules for every situation that may arise and require the parties to take this approach. This brings benefits for the common law in three key areas:

1) It is flexible and open to innovation

This is particularly important for companies operating in innovative sectors such as technology and financial services. Courts try to find logical solutions to new problems by building on existing case law without having to wait for new legislation. The law can adapt quickly to unforeseen business innovation by lawmakers in a way that more prescriptive and controlling civil law systems cannot. The freedom for parties to agree on what they want (subject to limited exceptions to prevent exploitation) contrasts with the goal of uniformity in the civil code. In addition, the common law recognizes the concept of trust which brings another weapon to its flexible arsenal.

2) Certainty

The very “reasoned” method of statutory interpretation in civil law systems (such as that of the EU) can lead to unpredictability and inconsistency between different judges. In contrast, the emphasis on legal precedents in common law systems allows businesses to predict legal outcomes with a much higher degree of certainty.

3) Highly skilled and impartial dispute resolution

The UK has an independent and impartial judiciary which is bound by precedents set by the most experienced and competent judges. Additionally, there are few restrictions on access to the UK for overseas-based law firms, which means that many of the world’s leading international law firms practice in London.

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IDEL can prevent disguised dismissal requests in common law: Coutinho V. Ocular Health was it badly decided? – Employment and HR https://prosecutebushcheney.org/idel-can-prevent-disguised-dismissal-requests-in-common-law-coutinho-v-ocular-health-was-it-badly-decided-employment-and-hr/ https://prosecutebushcheney.org/idel-can-prevent-disguised-dismissal-requests-in-common-law-coutinho-v-ocular-health-was-it-badly-decided-employment-and-hr/#respond Fri, 18 Jun 2021 07:00:00 +0000 https://prosecutebushcheney.org/idel-can-prevent-disguised-dismissal-requests-in-common-law-coutinho-v-ocular-health-was-it-badly-decided-employment-and-hr/ [ad_1] Canada: IDEL can prevent disguised dismissal requests in common law: Coutinho V. Ocular Health was it badly decided? June 18, 2021 Goodmans srl To print this article, simply register or connect to Mondaq.com. We recently reported on the Ontario Superior Court decision in Coutinho v. Eye health, which ruled that an employee who had […]]]>


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Canada: IDEL can prevent disguised dismissal requests in common law: Coutinho V. Ocular Health was it badly decided?

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We recently reported on the Ontario Superior Court decision in Coutinho v. Eye health, which ruled that an employee who had been “temporarily laid off” due to the COVID-19 pandemic, and deemed to be on emergency infectious disease leave, had been fired in disguise at common law. Check out our May 14, 2021 update, IDEL is not preventing employees from claiming constructive dismissal.

Three weeks later, the Court of Taylor v. Hanley Hospitality judged that Coutinho was badly decided and should not be followed.

In Taylor, the Court determined that the government promulgated Ontario Regulation 228/20: Emergency Infectious Disease Leave (IDEL) supersedes the common law. Thus, when an employee is temporarily laid off under the IDEL, this temporary layoff does not constitute a dismissal under the Employment Standards Act (ESA) nor does it constitute constructive dismissal at common law. The Court held that, in order to apply the interpretation advanced in Coutinho would render IDEL meaningless, which “violates the rules of statutory interpretation”.

As previously reported, under IDEL, an employee is deemed to be on “emergency infectious disease leave” when:

  1. the employee is not represented by a union;
  2. the employer temporarily reduces or suppresses the employee’s working hours and / or wages for reasons related to COVID-19; and
  3. the reduction or temporary elimination takes place during the “COVID-19 period” as defined in IDEL.

IDEL specifies in particular that a reduction or elimination of the hours and wages of a non-unionized employee for reasons related to COVID-19 (1) does not constitute a layoff within the meaning of the ESA, and (2) does not constitute constructive dismissal.

It remains to be seen how the two cases will be reconciled and whether one or both decisions will be reviewed by the Ontario Court of Appeal.

For information on this development in case law, please contact any member of our Employment and Labor group.

The content of this article does not constitute legal advice and should not be relied on in this manner. Specific advice should be sought regarding your particular situation.

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Hidden risks for common-law couples in Texas https://prosecutebushcheney.org/hidden-risks-for-common-law-couples-in-texas/ https://prosecutebushcheney.org/hidden-risks-for-common-law-couples-in-texas/#respond Mon, 24 May 2021 07:00:00 +0000 https://prosecutebushcheney.org/hidden-risks-for-common-law-couples-in-texas/ [ad_1] Many Texas couples, especially Millennials and older couples, choose a life partner while skipping the wedding ceremony. The reasons vary, but include a desire to save money, avoid family conflict or religious pressure, or sidestep the crippling prospect of future divorce. In doing so, they trade a well-known set of risks for an entirely […]]]>


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Many Texas couples, especially Millennials and older couples, choose a life partner while skipping the wedding ceremony. The reasons vary, but include a desire to save money, avoid family conflict or religious pressure, or sidestep the crippling prospect of future divorce.

In doing so, they trade a well-known set of risks for an entirely different, lesser-known, but equally difficult set of potential problems. Basically, the nature and extent of their property rights at the end of the relationship will depend on whether a marriage exists or not.

Texas has recognized informal or “common law” marriages since the mid-1800s. This recognition has now been extended to same-sex couples, following the 2015 United States Supreme Court ruling in Obergefell vs. Hodges. Therefore, states that recognize de facto marriages must also recognize informal same-sex marriages.

The elements of an informal marriage include (i) a marriage agreement; (ii) cohabitation as spouses; and (iii) representation to others, or “keep out”, as spouses (Tex. Fam. Code Ann. §2.401). These three elements must coexist simultaneously to establish a valid informal marriage. Once established, an informal marriage is considered as valid as a ceremonial marriage, with all the same rights, duties and privileges.

In the event of divorce, Texas law rebuttably presumes that both spouses are entitled to a “just and right” division of the property acquired during the marriage, regardless of who paid for it or on whose behalf the asset is made. or titled (Tex. Fam. Code Ann §7.001). Alternative legal theories for the division of property are much less generous than the “fair and just” standard set out in the Family Code. For this reason, at the end of the relationship, the existence or non-existence of an informal marriage is frequently and fiercely contested, and the burden of proof rests solely on the promoter of the marriage. An unfavorable result can lead to severe or even drastic results.

For example, in high conflict cases, it is not uncommon for one partner to unilaterally lock the other out of the house with little or no notice. The remedies are clear and simple in the context of a divorce. Yet, in the absence of a provable marriage, the evicted party might be required to demonstrate that they have a legal right to remain in the home under another legal theory. These theories include illegal foreclosure, retaliation, constructive expulsion, partition, and trespassing to try the title. The problem with these options is that the mover must establish that there is a property right or that there is a landlord-tenant relationship. If the mover’s name does not appear on the deed or rental agreement, proving either basis can be just as difficult as proving the existence of an informal marriage.

Another risk comes in the form of pension plans. Pensions, 401 (k); IRA; 403 (b); pension plans for teachers, the military and the federal government; stock options; and RSUs are governed by very specific laws that take little account of what Texas law considers a meritorious relationship. (Texas case law defines a meritorious relationship as a cohabitation sexual relationship between two unmarried individuals. See Faglie v. Williams, 569 SW2d 557, 566 (Tex.App. — Austin 1978, short ref.)). Although most federally and state regulated plans allow the plan member to designate another beneficiary without declaring the person as a spouse, they are not necessarily required to do so. Private plans also vary in their requirements. In the absence of an affirmative designation, the alternate beneficiary could find itself without a pension following an unfavorable decision on the issue of informal marriage.

When it comes to other assets, such as cars, bank accounts, art collections, and other types of personal property, the analysis can quickly become granular. Without the benefit of Texas community property laws, the court could first examine title documents, receipts, and other documents to identify the legal owner of each asset. Beyond that, the spouse without property might be forced to pursue even more obscure theories to prove ownership, such as the existence of a partnership, constructive trust, or collection under quantum meruit. ..

The dissolution of an informal marriage through the legal system presents a number of hidden risks for the divorcing couple. However, there are several advanced risk mitigation strategies for couples. They could sign a written declaration of marriage at any time and register it as provided by §§2.402 and 2.404 of the Texas Family Code. Another option is to enter into a written agreement before marriage or after marriage in accordance with the requirements of Chapter 4 of the Texas Family Code, presumably while the relationship is still healthy. But perhaps the best advice we can offer our clients is to take the trip down the aisle after all.

Curtis harrison is a board-certified family lawyer and partner of the law firm GoransonBain Ausley. For the past 27 years, he has worked to help people going through divorce resolve their family law conflict in the least destructive way possible under the circumstances.

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Brexit ‘will renew the vigor’ of common law legacy, Supreme Court justice says | New https://prosecutebushcheney.org/brexit-will-renew-the-vigor-of-common-law-legacy-supreme-court-justice-says-new/ https://prosecutebushcheney.org/brexit-will-renew-the-vigor-of-common-law-legacy-supreme-court-justice-says-new/#respond Tue, 20 Apr 2021 07:00:00 +0000 https://prosecutebushcheney.org/brexit-will-renew-the-vigor-of-common-law-legacy-supreme-court-justice-says-new/ [ad_1] Brexit could strengthen the UK’s relationship with common law jurisdictions such as New Zealand and Canada, as the legal system diverges from that of Europe, a Supreme Court justice has said. Speaking at a virtual conference attended by senior New Zealand court judges, Lord Sales said the UK’s departure from the European Union “could […]]]>


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Brexit could strengthen the UK’s relationship with common law jurisdictions such as New Zealand and Canada, as the legal system diverges from that of Europe, a Supreme Court justice has said.

Speaking at a virtual conference attended by senior New Zealand court judges, Lord Sales said the UK’s departure from the European Union “could have distinct and positive implications for our relationship with other common law jurisdictions “.

“The starting point is that the UK already has a strong relationship with the rest of the common law world. Our common legal heritage means that our courts frequently refer to each other’s case law when considering how to approach similar issues in our own jurisdiction, ”said Lord Sales.

He added that the “strong relationship” will not be weakened by Brexit. “There is good reason to believe that these links could in fact be strengthened. It has been suggested that UK courts may now increasingly prefer to resort to our non-European rather than European counterparts, as we have retained our legal similarities with these jurisdictions. ‘

Sales said commentators have already started to identify particular common law doctrines that may regain prominence in the UK legal body, including the trade restriction common law doctrine. “In the years to come, we may well see UK law evolve differently from our European counterparts and in so doing find renewed vigor and inspiration in our common law heritage,” he said.

The UK has opposed the EU over a key legal treaty, having formally left the EU on January 31, 2020. The European Commission reportedly opposes UK accession to the Convention of Lugano 2007, which facilitates judicial cooperation across Europe.

The convention is an international agreement on which the courts of the country can hear cross-border civil or commercial disputes and what decisions can be enforced. The deal is particularly important for individuals and small businesses who would otherwise find it difficult to enforce their rights.

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Common Law Won’t Save Small Business From Fines After Violating Provincial COVID Restrictions https://prosecutebushcheney.org/common-law-wont-save-small-business-from-fines-after-violating-provincial-covid-restrictions/ https://prosecutebushcheney.org/common-law-wont-save-small-business-from-fines-after-violating-provincial-covid-restrictions/#respond Wed, 14 Apr 2021 07:00:00 +0000 https://prosecutebushcheney.org/common-law-wont-save-small-business-from-fines-after-violating-provincial-covid-restrictions/ [ad_1] Barrie’s Simmering Kettle recently had its liquor license revoked following complaints that it remained open for indoor dining despite provincial orders to the contrary. According to Kettle’s social media channels, he is immune to these restrictions under what is called common law. Common law, or the law of judgment, involves the practice of going […]]]>


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Barrie’s Simmering Kettle recently had its liquor license revoked following complaints that it remained open for indoor dining despite provincial orders to the contrary. According to Kettle’s social media channels, he is immune to these restrictions under what is called common law.

Common law, or the law of judgment, involves the practice of going back on previous decisions rendered by the courts in order to guide decisions on similar pending cases. “Common law is case law,” said Joshua Valler, senior partner at Barriston Law, who gave Barrie 360 ​​a crash course on the term. “It’s when someone sues someone, or a case ends up before a judge, a judge makes a decision on the matter. This is called common law. A judge’s decision sets a precedent that can be referred to later.

The simmering kettle loses its liquor license, could face further lawsuits for violating the provincial order banning dining in

“All the provinces, except Quebec, follow the common law, or the law of judgment,” he added.

Can the common law help a restaurant avoid or mitigate fines, removal of its liquor license, or complete closure by health inspectors?

Simple answer: No.

Complex answer: The common law only applies to civil litigation and certain criminal proceedings, but would be extremely difficult to apply to areas such as regulatory offenses. “There is a little difference when it comes to regulatory procedures,” Valler said. “Let’s say there is a fine issued by the Ministry of Labor or an inspector hired by the province to ensure compliance with the regulations. There will be a different standard if there is a fine they want to challenge; there is going to be another type of tribunal and different arguments are available to them.

Valler adds that the common law could apply in cases involving a civil lawsuit, such as a former employee suing an employer after being laid off. He says there are already such cases in court, and with little precedent to draw upon, judges will have to review decisions made by employers. “What you’re going to see, I think, is that the judge will look at the standard of what is reasonable,” he said. “Did they follow the advice of public health officials in their local health units? Have they implemented the appropriate security protocols to ensure that they maintain a safe and clean business space for customers and employees? And did they follow the regulations in place? “

While some companies that have been penalized for violating current restrictions have indicated their willingness to fight fines or fees imposed, it has been said that others will fight the legality of the restrictions themselves. Valler says that argument will take a long time to play out in court. “They could look at validity in the context of COVID-19 and was that a justifiable limitation? Now, it’s also going to take some time to make its way to court. Were these restrictions justified? And where have they even gone so far as to violate the Charter of Rights and Freedoms or other laws? “

Since the restrictions came into effect, the Simmering Kettle has been fined for staying open for indoor dining. The restaurant was also fined for not renewing its business license. On Friday, the owner said she would pay her fines and renew her license.

The Alcohol and Gaming Commission of Ontario (AGCO), which was responsible for the suspension of the Simmering Kettle’s liquor license, said it had asked for the license to be permanently revoked due to violations of provincial restrictions. “It is a very difficult time for all Ontarians. The hospitality industry has been hit particularly hard by the pandemic, and we understand and share the concerns of those whose livelihoods depend on it, ”said Tom Mungham, Registrar and CEO of AGCO. “We know that the vast majority of licensed establishments are also doing their part, despite the toll that this imposes on them. We never like to take these steps, but we have a mandate to protect the public and ensure the safety of our staff and we will not hesitate to take the necessary steps to do so. “

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University of Ottawa Civil Law Launches Video Storytelling Project https://prosecutebushcheney.org/university-of-ottawa-civil-law-launches-video-storytelling-project/ Sun, 28 Feb 2021 08:00:00 +0000 https://prosecutebushcheney.org/university-of-ottawa-civil-law-launches-video-storytelling-project/ [ad_1] Trépanier, who also has a background in filmmaking, reviewed some of the work he was doing at Justice Canada, “trying to promote the use of audiovisuals for knowledge mobilization and the concept of visual advocacy in law.” , and pitched the idea of ​​a visual advocacy program to Marie-Ève ​​Sylvestre, Dean of the Ottawa […]]]>


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Trépanier, who also has a background in filmmaking, reviewed some of the work he was doing at Justice Canada, “trying to promote the use of audiovisuals for knowledge mobilization and the concept of visual advocacy in law.” , and pitched the idea of ​​a visual advocacy program to Marie-Ève ​​Sylvestre, Dean of the Ottawa Faculty of Law, Civil Law Section, and the Deputy Minister of Justice. The idea was to create a platform that would host content, “not only for knowledge mobilization, but also for legal awareness”.

The idea was accepted and Trépanier was sent to the Faculty of Justice Canada to direct the project for two years, as filmmaker in residence.

Lawyers and lawyers must learn to “write and read in pictures”, he says, and “to go beyond our textbooks, our case law and our documents. There is a gap there ”, especially as the younger generations use more visuals and video, which can also be more accessible to the public. Chief Justice Richard Wagner has also identified public accessibility of legal information as a priority, he notes.

Jurivision’s ‘visual posts’ cover several legal themes, including courts, criminal, labor and family law, and four ‘visual genres’: JuriExperiences, or paths to law, to inspire law students (the Chief Justice of Canada also discussed his own legal career and his studies at the University of Ottawa; JuriKnowledge; JuryMetho, on research in law; and JuriDocs, which takes a researcher into the field and shows how research has an impact A JuriDoc on food law is in the works, with the researcher and the film crew having already visited a farm, and three more are planned.

Other visual articles created so far include Professor Mariève Lacroix who explains how engagement in comparative law can help researchers gain new perspectives; and Professor Eva Ottawa, member of the Atikamekw Nehirowisiw Nation, explaining her work on the traditions and customs that form the basis of her nation’s legal order. A collaborative effort with the University of Ottawa’s Public Law Center is also examining legal responses to COVID-19.

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