content article – Prosecute Bush Cheney http://prosecutebushcheney.org/ Sun, 17 Apr 2022 08:28:00 +0000 en-US hourly 1 https://wordpress.org/?v=5.9.3 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png content article – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 Indiana Common Law vs. Lanham Law Clash Over Unfair Competition Allegations Covered Same – Intellectual Property https://prosecutebushcheney.org/indiana-common-law-vs-lanham-law-clash-over-unfair-competition-allegations-covered-same-intellectual-property/ Tue, 01 Mar 2022 10:23:14 +0000 https://prosecutebushcheney.org/indiana-common-law-vs-lanham-law-clash-over-unfair-competition-allegations-covered-same-intellectual-property/ United States: The Indiana common law vs. Lanham law fight for unfair competition claims is also covered. March 01, 2022 Khurana and Khurana To print this article, all you need to do is be registered or log in to Mondaq.com. Renee Gabet, Owner of Annie Oakley Businesses (“Plaintiff”) filed a civil lawsuit […]]]>


United States: The Indiana common law vs. Lanham law fight for unfair competition claims is also covered.

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Renee Gabet, Owner of Annie Oakley Businesses (“Plaintiff”) filed a civil lawsuit against Amazon Inc alleging the sale of their infringing product on the website of the United States District Court for the Southern District of ‘Indiana, (“Indianapolis Division”, “Court”) under the Lanham Act and the common law of Indiana, which includes an action for trademark infringement, use of an advertising idea, dilution of trademark, false appellation of origin and unfair competition and unfair competition at common law and sought compensation as well as injunctive relief.Rise-n-shine (hereafter RNSO) housed several all-natural solutions for the problems of health, wellness and beauty. Mainly RNSO sold raw materials used to make soap, shampoo and creams. Gradually, RNSO started selling its items on Amazon in 2015 and has continued to do so during the ci nq following years. The seller’s name listed on the webpage was “RISE N SHINE ONLINE LLC”, but sometimes it was listed as “E&E PREMIER DISTRIBUTOR”. The trademark “RISE N SHINE” was used by the plaintiff in its product because it owned the mark. Whereas RISE N SHINE ONLINE LLC and Eric sold the product with a trademark of plaintiff on amazon. Initially, plaintiff brought a trademark infringement action against RNSO and Amazon Inc. It was alleged that RISE N SHINE ONLINE LLC and Eric manufactured, copied, reproduced, sold, offered for sale, publicly displayed, distributed and imported products using a trademark. name RISE N SHINE. Moreover, the same had been sold on the Amazon website. Plaintiffs and RISE N SHINE ONLINE LLC and Eric settled in May 2020, and their claim was denied with prejudice. Subsequently, the complaint against Amazon was only pending in court.

The Court referred Jackson v. Regions Bank, 838 F. App’x 195, 198 (7th Cir. 2021) decision and affirmed the Court’s decision to dismiss the claims that had not been preserved in the Statement of Claims. Accordingly, based on the alleged infringement of Plaintiff’s trademarks, the only claims Plaintiff can pursue are trademark infringement under the Lanham Act and unfair competition under the common law of Indiana and India. other claims have been dropped.

Therefore, this was not a case in which Amazon had invested too much time and reliable resources in building a brand and selling the offending product. Thus, with respect to Amazon’s affirmative defense against cowards, plaintiff’s motion for summary judgment was also granted and the counter-motion was denied.
In CAE, Inc. c. Clean Air Eng’g, Inc., 267 F.3d 660, 673 (7th Cir. 2001), the court observed that to register a mark under the Lanham Act, such a mark would have to be capable of being distinguished from other marks that have prevailed in interstate commerce. Pursuant to 15 USC 1065, the Lanham Act held that a registered mark that was in common commercial use for 5 years became indisputable. However, the protections available for a trademark depend on its distinctive character. Rise ‘n’ Shine’s recording was protectable because its recording was valid in the field. Thus, the court granted the plaintiff’s motion for summary judgment and dismissed Amazon’s counterclaim.

Unfair competition claimed under Indiana common law is also covered by the Lanham Act. The court concluded that the key issue was whether the offending product created confusion among customers. The question concerned must be resolved by the investigator. Initially, plaintiffs’ motion for summary judgment was denied, along with Amazon’s counterclaim, which was also denied.
In this case, the court observed Amazon’s liability for potential infringement in two ways: direct infringement and indirect infringement. In a direct violation, the court found that potential liability could not be determined in a judgment summary. Plaintiff’s motion for summary judgment as well as Amazon’s cross motion were both denied. While Amazon’s cross-motion was partially granted. But in the case of liability for indirect infringement, plaintiff’s summary motion and Amazon’s counterclaim were partly dismissed and partly granted.

Finally, the district court observed that the plaintiff’s motion for interim relief was partly granted and partly denied in direct and indirect violation. However, Amazon’s motion to strike the jury’s claim was granted. The remaining issues had been decided in a bench trial that had been scheduled separately.

The Indiana common law vs. Lanham law fight for unfair competition claims is also covered.

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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Lawmakers confuse common law with equity – Corporate/Commercial Law https://prosecutebushcheney.org/lawmakers-confuse-common-law-with-equity-corporate-commercial-law/ Mon, 14 Feb 2022 08:00:00 +0000 https://prosecutebushcheney.org/lawmakers-confuse-common-law-with-equity-corporate-commercial-law/ United States: The legislator confuses common law with equity February 14, 2022 Allen Matkins Leck Gamble Mallory & Natsis LLP To print this article, all you need to do is be registered or log in to Mondaq.com. Although never a colony of England, California has nevertheless adopted the Common Law […]]]>


United States: The legislator confuses common law with equity

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Although never a colony of England, California has nevertheless adopted the Common Law of England as the rule for adjudication in state courts (except where contrary or inconsistent with the Constitution of the United States). United States, or the Constitution or laws of California). Cal. Civil. Code§ 22.2. To see Ahistorical Bedfellows: The California Corporate Code and the Common Law. England also had separate courts of equity and the distinction between law and equity remains important in some contexts. For example, fair questions are generally determined by the judge and not by a jury.

The California legislature appears to have forgotten or ignored the historical differences between law and equity when it enacted the California Revised Uniform Limited Liability Company Act. Section 17703.04(b) of the Companies Code begins by stating “A member of a limited liability company is subject to liability under the common law governing alter ego liability…”. The problem with this provision is that alter ego is a fair doctrine and not common law. To see Alexander v. Carillon Abbey, 104 Cal. App. 3d 39, 48, 163 Cal. Rptr. 377, 381, (1980) (“When considering the application of the alter ego doctrine to a particular situation, it must be remembered that it is a fair doctrine . . “).

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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Toronto man and his common-law wife face 400 charges, including incest https://prosecutebushcheney.org/toronto-man-and-his-common-law-wife-face-400-charges-including-incest/ Wed, 09 Feb 2022 08:00:00 +0000 https://prosecutebushcheney.org/toronto-man-and-his-common-law-wife-face-400-charges-including-incest/ Links to the breadcrumb Toronto and the GTA News criminality Allegations include sexual assault, assault and posting clandestine videos online Publication date : February 09, 2022 • February 9, 2022 • 2 minute read • 21 comments Photographic illustrations Fotolia Content of the article A Toronto man and his common-law wife face a combined total […]]]>

Allegations include sexual assault, assault and posting clandestine videos online

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A Toronto man and his common-law wife face a combined total of 400 charges related to alleged sexual assaults, including against minors, which police say took place over at least 14 years.

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The 38-year-old, who cannot be identified due to a publication ban, was already being held at the Toronto East Detention Center and facing 78 related charges.

The new charges – 229 of them – include allegations of making and possessing child pornography, sexual assault, assault with a weapon, voyeurism and incest.

After an appearance on Tuesday morning via video link before a justice of the peace at Old City Hall Court, the accused refused to leave his cell for an afternoon appearance.

A lengthy investigation by Toronto police – Project Shutter – uncovered a wide range of computers, hard drives, cameras, memory cards, USB drives and cell phones in connection with the charges against the man and the woman.

Sources told the Toronto Sun the man is accused of sexually assaulting his children and stepchildren.

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The alleged abuse of one of them – according to sources – happened when they were between three and 11 years old.

Two others, sources said, detailed in 2020 how they were allegedly sexually assaulted and assaulted with a dog leash and hot sauce from 2014 to 2018.

At least three women complained to the police in February 2021 after discovering nude videos of themselves – and friends they recognized – posted online on porn sites after they had been recorded without their knowledge or without their consent.

Sources say there are more people who have been registered.

Sources also said images of the defendant’s ex-wife had been discovered online.

After being contacted, the ex-wife said she had consented to the images being taken, but was unaware they had been posted online.

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We apologize, but this video failed to load.

The accused’s common-law wife – whose identity is also covered by a publication ban – surrendered to officers at the 55th Division on Tuesday.

The 43-year-old woman, who appeared in court, faces 93 charges, including making and possessing child pornography, sexual assault, voyeurism and assault with a weapon. None of the allegations have been proven.

The two defendants were ordered to avoid contact with a list of 22 people.

Sam Goldstein, defense attorney for the accused, said: ‘All of these allegations are mere allegations and they need to be proven. There is a presumption of innocence and we must remember that.

The accused has been detained since last June. He is due back in court on March 4.

The woman is due to appear on February 18.

Toronto police said they plan to provide a Project Shutter update next week.

slaurie@postmedia.com

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There is more than one way to skin a disloyal cat: The Common Law Duty of Loyalty Claim Saves the Day – Intellectual Property https://prosecutebushcheney.org/there-is-more-than-one-way-to-skin-a-disloyal-cat-the-common-law-duty-of-loyalty-claim-saves-the-day-intellectual-property/ Mon, 13 Dec 2021 08:00:00 +0000 https://prosecutebushcheney.org/there-is-more-than-one-way-to-skin-a-disloyal-cat-the-common-law-duty-of-loyalty-claim-saves-the-day-intellectual-property/ [ad_1] United States: There is more than one way to skin a disloyal cat: the common law duty of loyalty claim saves the day December 13, 2021 Archer and Greiner PC To print this article, simply register or connect to Mondaq.com. We often answer clients’ questions on how best to protect their business interests, including […]]]>


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United States: There is more than one way to skin a disloyal cat: the common law duty of loyalty claim saves the day

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We often answer clients’ questions on how best to protect their business interests, including their trade secrets. We do not take a one-size-fits-all approach and the advice we give depends on the needs and circumstances of our clients. We take this approach because companies have three sometimes overlapping, but distinct, means of protection: restrictive covenants (for example, non-compete, non-disclosure, and non-solicitation agreements); statutes; and common law.

It is important for companies to keep this in mind in order to maximize the precautions they can take against employees leaving to take up positions with the competition. In the event that legal action is required, it is important for businesses to make all possible arguments. In some cases, the former employee may not have signed a restrictive covenant. In other cases, the conduct of the former employee may not be covered by applicable law. In these cases, the common law could still provide the protections the business needs. We have already written about the common law obligation of employees to refrain from using or disclosing confidential information and how an employer can potentially prevent an employee leaving the competition from using that information, even in the absence of a non-compete agreement.

A recent New Jersey case in federal court further illustrates how a company can successfully invoke another common law obligation to prevent an departing employee from unfair competition, this time using the duty of loyalty.

In SFX Installation, Inc. v Pimental, 2021 WL 4704964 (DNJ 8 October 2021), the employer has installed specialized laboratory equipment. The former employee worked there for four years, starting as a helper and being promoted to foreman. As a foreman, the former employee had access to the employer’s VPN, which contained information on the company’s prices, offers and proposals, and the company’s storage facility.

While still employed by the company, the former employee secretly formed a new company to compete. He solicited business for his new business by contacting the employer’s clients. He also conducted some business for his new business during his employer’s time, using the employer’s employees and resources. He also posted photos of his work for the employer on his new company’s social media page.

The employee ultimately resigned, citing personal reasons and not mentioning his new business. When the employer learned of the new business from his own clients, he sued for injunction and damages. Since the company did not require the former employee to sign a restrictive covenant, its complaint alleged that the former employee had violated the Defend Trade Secrets Act (“DTSA”) and the New Jersey Trade Secrets Act. (“NJTSA”) and asserted common law allegations of tortious interference with the contract, conversion and breach of the duty of loyalty.

The court dismissed the employer’s claims under the DTSA and NJTSA on the grounds that the employer failed to sufficiently allege that the installation of laboratory equipment was a protectable trade secret, as opposed to general industry knowledge not protectable. In addition, although the former employee had access to the employer’s trade secrets (for example, information on customers, prices and offers), the former employer did not present sufficient evidence that the he former employee actually used them.

However, the rejection of the statutory claims did not end the analysis, as the employer also asserted common law claims. The duty of loyalty prohibits employees from acting against the interests of their employer during their employment. On this point, the employer has sufficiently asserted a complaint. The former employee admitted to soliciting and performing work for the employer’s clients, and that work constituted the majority of the business of the new company.

In addition, the employer alleges that the former employee used the employer’s resources for his new business. For example, the employer presented receipts from EZ Pass and Home Depot showing that the former employee was working and shopping for their new business during the days and times listed on their tally sheet for the employer. He used the company’s cell phone for his new business calls. He used some of the employer’s equipment to perform work for his new business and he advertised his new business by posting photos of the work performed for the employer.

Following the request for a duty of loyalty, the Court granted the employer’s request for a preliminary injunction. This case presents some valuable lessons. First, it shows that it is not necessarily necessary for a restrictive covenant to be in place for an employer to succeed in a case against an unfair former employee. Second, although there is often an overlap between statutory and common law claims, sometimes the conduct of an disloyal former employee can go against the common law without violating a law. It is important that employers are aware of and assert all possible claims when filing a lawsuit. This is especially true where the conduct of the former employee is particularly egregious, as was arguably the case here.

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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CPS Blotter: man charged after allegedly assaulting his common-law partner https://prosecutebushcheney.org/cps-blotter-man-charged-after-allegedly-assaulting-his-common-law-partner/ Wed, 08 Dec 2021 14:33:56 +0000 https://prosecutebushcheney.org/cps-blotter-man-charged-after-allegedly-assaulting-his-common-law-partner/ [ad_1] Content of the article A 41-year-old Cornwall man faces charges after he allegedly assaulted, suffocated and hit his common-law partner with a piece of clothing on December 7. The unidentified man was taken into custody following a brief scuffle with police and charged with domestic assault, assault with a weapon, assault causing bodily harm […]]]>


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A 41-year-old Cornwall man faces charges after he allegedly assaulted, suffocated and hit his common-law partner with a piece of clothing on December 7. The unidentified man was taken into custody following a brief scuffle with police and charged with domestic assault, assault with a weapon, assault causing bodily harm and resisting police. He was held for a bail hearing. His name was not disclosed as it would identify the victim in the case.

Content of the article

Aggression, OFFENSE

Dana Cayer, 20, of Cornwall, was arrested on December 7 and charged with assault, as well as breach of probation for failing to maintain public order. Police allege that during an altercation with a person they know on the same day, Cayer spat on the man. She was taken into custody, charged accordingly and detained for a bail hearing.

DOMESTIC MALICIOUSNESS, INFRINGEMENT

A 26-year-old man from Akwesasne was arrested on December 8 and charged with domestic mischief, along with two counts of failing to comply with the release order for contacting and being some distance from his ex-girlfriend. Police allege that in the early hours of the morning on Wednesday, the man went to his ex-girlfriend’s residence, despite his conditions, and damaged the door to his residence. He was taken into custody, charged accordingly and detained for a bail hearing. His name was not disclosed as it would identify the victim in the case.

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The Common Law Duty of Loyalty Claim Saves the Day – Employment and HR https://prosecutebushcheney.org/the-common-law-duty-of-loyalty-claim-saves-the-day-employment-and-hr/ Wed, 24 Nov 2021 08:00:00 +0000 https://prosecutebushcheney.org/the-common-law-duty-of-loyalty-claim-saves-the-day-employment-and-hr/ United States: Common law duty of loyalty claim saves the day November 24, 2021 Archer & GreinerPC To print this article, all you need to do is be registered or log in to Mondaq.com. We often answer customer questions about how best to protect their business interests, including their trade secrets. We do not take […]]]>

United States: Common law duty of loyalty claim saves the day

To print this article, all you need to do is be registered or log in to Mondaq.com.

We often answer customer questions about how best to protect their business interests, including their trade secrets. We do not take a one-size-fits-all approach and the advice we give depends on the needs and circumstances of our clients. We take this approach because companies have three sometimes overlapping but distinct means of protection: covenants (eg, non-competition, non-disclosure, and non-solicitation agreements); statutes; and common law.

It’s important for companies to keep this in mind in order to maximize the precautions they can take against employees leaving to take up positions with competitors. In the event that a lawsuit is necessary, it is important that companies make all possible arguments. In some cases, the former employee may not have signed a restrictive covenant. In other cases, the former employee’s conduct may not be covered by applicable law. In these cases, the common law may still provide the protections the company needs. We have already written on a common law duty of employees to refrain from using or disclosing confidential information and how an employer can potentially prevent a departing employee from using that information, even in the absence of a non-disclosure agreement. competetion.

A recent case from New Jersey in federal court further illustrates how a company can successfully invoke another common law duty to restrain an employee leaving unfair competition – this time using the duty of loyalty.

In SFX Installation, Inc. vs. Pimental, 2021 WL 4704964 (DNJ 8 Oct. 2021), the employer installed specialized laboratory equipment. The former employee worked there for four years, first as a helper and was promoted to foreman. As a foreman, the former employee had access to the employer’s VPN, which contained information about the company’s prices, offers and proposals, as well as the company’s storage facility.

While still employed by the company, the former employee secretly formed a new company to compete. He solicited business for his new business by contacting the employer’s customers. He also conducted some activities for his new business on his employer’s time, using the employer’s employees and resources. He also posted photos of the work he did for the employer on his new company’s social media page.

The employee eventually quit, citing personal reasons and not mentioning his new company. When the employer heard about the new business from its own customers, it sued for injunctive relief and damages. Because the company did not require the former employee to sign a covenant, its complaint alleged that the former employee violated the Defense of Trade Secrets Act (“DTSA”) and the on New Jersey Trade Secrets (“NJTSA”) and asserted common law allegations of tort of breach of contract, conversion and breach of duty of loyalty.

The court dismissed the employer’s claims under the DTSA and NJTSA on the basis that the employer had failed to sufficiently allege that the installation of laboratory equipment was a protectable trade secret, as opposed to general non-protectable industry knowledge. Further, although the former employee had access to the employer’s trade secrets (e.g. customer information, prices and offers), the former employer did not present sufficient evidence that the former employee was actually using them.

However, the dismissal of the statutory claims did not end the analysis, as the employer also asserted common law claims. The duty of loyalty prohibits employees from acting against the interests of their employer during their employment. As such, the employer has sufficiently asserted a claim. The former employee admitted that he solicited and performed work for the employer’s clients, and that this work constituted the majority of the business of the new company.

In addition, the employer alleged that the former employee had used the employer’s resources for his new business. For example, the employer presented receipts from EZ Pass and Home Depot showing that the former employee performed work and made purchases for his new business during the days and times indicated on his time card that he worked. for the employer. He used the employer’s company cell phone to make calls for his new business. He used some of the employer’s equipment to do work for his new business and he advertised his new business by posting pictures of work done for the employer.

Following the claim for the duty of loyalty, the Court granted the employer’s request for a preliminary injunction. This case offers some valuable lessons. First, it shows that a restrictive covenant need not be in place for an employer to succeed in a case against a disloyal former employee. Second, although there is often an overlap between legal claims and common law claims, sometimes the conduct of a disloyal former employee may violate the common law without violating any statute. It is important that employers are aware of and assert all possible claims when pursuing legal action. This is especially true where the former employee’s conduct is particularly egregious, as was arguably the case here.

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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The common law of BVI after a general idea – Litigation, mediation and arbitration https://prosecutebushcheney.org/the-common-law-of-bvi-after-a-general-idea-litigation-mediation-and-arbitration/ https://prosecutebushcheney.org/the-common-law-of-bvi-after-a-general-idea-litigation-mediation-and-arbitration/#respond Mon, 11 Oct 2021 17:12:07 +0000 https://prosecutebushcheney.org/the-common-law-of-bvi-after-a-general-idea-litigation-mediation-and-arbitration/ [ad_1] British Virgin Islands: The common law of BVI after a broad idea October 11, 2021 Collas Crill To print this article, simply register or connect to Mondaq.com. The Judicial Committee of the Privy Council recently delivered its much anticipated judgment in the BVI’s joint appeals in Broad Idea International Ltd v Convoy Collateral Ltd […]]]>


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British Virgin Islands: The common law of BVI after a broad idea

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The Judicial Committee of the Privy Council recently delivered its much anticipated judgment in the BVI’s joint appeals in Broad Idea International Ltd v Convoy Collateral Ltd and Convoy Collateral Ltd v Cho Kwai Chee.

Some key lessons can be learned from the judgment

  1. With respect to service on a foreign defendant of a claim form in which a freezing injunction is the only remedy sought, the Rules of Civil Procedure of the Eastern Caribbean Supreme Court 2000 (the “CE RPCs”) do not provide no power to the courts of the BVI. . Consequently, this apparent limitation of the CE RPC can only be corrected by their amendment.
  2. Reaffirming the jurisdiction of Black Swan (which has since been placed on a statutory basis) and departing from the dicta of the House of Lords in The Siskina, the Privy Council noted that a freezing injunction is not, in actual fact, analysis, incidental to a cause of action, in the sense of a request for substantial relief, or not at all. The essential purpose of a freezing injunction is to facilitate the execution of a judgment or of an order to pay a sum of money, by preventing the assets against which such a judgment could potentially be executed from being processed. so that insufficient goods are available to meet the judgment. Therefore, there is no policy reason to link the grant of such an injunction to the existence of a cause of action.

Summary

The common law of the BVI (and perhaps more generally) on the granting of freezing orders can be stated as follows (by Lord Leggatt at paragraphs 101 and 102):

a) A court having equitable and / or statutory jurisdiction to grant injunctions where it is just and convenient to do so has the power to grant a freezing injunction against a party over which the court has personal jurisdiction. on condition that :

i) the plaintiff has already obtained or has valid arguments for obtaining a judgment or order for payment of a sum of money which is or will be enforceable through the legal process;

(ii) the defendant has assets (or is likely to take actions other than in the ordinary course of business which will reduce the value of the assets) against which such judgment could be enforced; and

(iii) there is a real risk that, unless the injunction is granted, the defendant will treat these assets (or take actions that make them less valuable) other than in the ordinary course of business, such that the availability or the value of the assets are depreciated and the judgment is not satisfied.

b) Although other factors are potentially relevant to the exercise of the discretion to grant a freezing order, there are no other relevant restrictions on the availability in principle of the remedy. Specifically:

i) The judgment need not be a judgment of the national court – the principle also applies to a foreign judgment or other enforceable award in the same way as a judgment of the national court using the powers of court execution.

ii) Although this is the usual situation, there is no requirement that the judgment be a judgment against the Respondent.

iii) It is not necessary that the proceedings in which the judgment is requested have already been initiated nor that a right to institute such proceedings has already arisen: it is sufficient that the court can be satisfied with a sufficient degree of certainty that a right to bring an action will arise and that an action will be brought (whether before the national court or before another court).

The full text of the Privy Council’s decision is available here.

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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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/ [ad_1] 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 […]]]>


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

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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.

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The Dutch competition authority has closed an investigation into an alleged maintenance of resale prices in the furniture sector. ACM initiated the investigation following indications that suppliers had imposed minimum prices on retailers. In addition, the ACM suspected that there would be agreements between different suppliers on the resale prices of their products to consumers.

The Dutch competition authority has closed an investigation into an alleged maintenance of resale prices in the furniture sector. This survey was announced on September 18, 2020 by the Dutch Consumers and Markets Authority (ACM). ACM initiated the investigation following indications that suppliers had imposed minimum prices on retailers. In addition, the ACM suspected that there would be agreements between different suppliers on the resale prices of their products to consumers.

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