law court – Prosecute Bush Cheney http://prosecutebushcheney.org/ Sun, 17 Apr 2022 08:27:35 +0000 en-US hourly 1 https://wordpress.org/?v=5.9.3 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png law court – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 English Commercial court enforces DIFC court judgment under common law rules | K&L Gates LLP https://prosecutebushcheney.org/english-commercial-court-enforces-difc-court-judgment-under-common-law-rules-kl-gates-llp/ Sun, 23 Jan 2022 21:11:15 +0000 https://prosecutebushcheney.org/english-commercial-court-enforces-difc-court-judgment-under-common-law-rules-kl-gates-llp/ The Commercial Court of the Queen’s Bench Division of the High Court of Justice of England and Wales (Commercial Court) has granted a motion for summary judgment on a claim for enforcement in England of a judgment DIFC Courts (an English-language common law court in the Dubai International Financial Center (DIFC), United Arab Emirates (UAE)). […]]]>

The Commercial Court of the Queen’s Bench Division of the High Court of Justice of England and Wales (Commercial Court) has granted a motion for summary judgment on a claim for enforcement in England of a judgment DIFC Courts (an English-language common law court in the Dubai International Financial Center (DIFC), United Arab Emirates (UAE)). The case (Barclays Bank Plc v Shetty [2022] EWHC 19 (Comm)) is a helpful reminder of the principles English courts will adopt when asked to enforce a foreign judgment at common law.

The defendant, Dr. Bavaguthu Raghuram Shetty (Dr. Shetty), the founder of a foreign exchange business (UAEEC), had provided a guarantee (Guarantee) by which Dr. Shetty guaranteed the performance by the UAEEC of its obligations under certain derivative contracts with Barclays Bank PLC (Barclays), which were terminated early following a default by the UAEEC. The Guarantee was governed by English law and contained an exclusive jurisdiction clause in favor of the DIFC courts. A claim for payment was made under the guarantee by Barclays, which Dr Shetty had failed to meet.

Barclays brought proceedings against Dr Shetty in the DIFC Magistrates Court (Barclays Bank PLC v Bavaguthu Raghuram Shetty [2020] DIFC CFI 061), claiming the sums claimed under the Guarantee. By judgment dated April 22, 2021, Judge Martin granted Barclays’ request for immediate judgment (equivalent to summary judgment), finding that “none of the issues raised on behalf of Dr Shetty offer a realistic prospect of a successful defense of Barclays’ claim against him, nor any other compelling reason why the matter should go to trial. Judge Martin noted that following the hearing of the motion for immediate judgment, Dr Shetty had embarked on “a strategy of seizing any point, regardless of background, with the aim of delaying the delivery of [his] decision.” The judge further ordered that the worldwide freeze order Barclays had previously obtained remains in effect, amended to remove the previous exceptions for legal costs and reasonable living expenses.

By judgment dated May 4, 2021, the DIFC Magistrate’s Court issued its judgment on quantum, ordering judgment to be entered in the amount of USD 131,440,346.22 plus simple interest at the rate of 9% per year on the outstanding balance until the judgment is satisfied. full.

In July 2021, Barclays served a claim form and details of the claim to enforce the DIFC judgment in England and Wales and subsequently sought summary judgment. Dr. Shetty applied for an adjournment of summary judgment proceedings on the grounds that he was an in-person litigant and was unable to defend the claim without legal representation and advice. He said he had been unable to hire a company to act on his behalf following freezing orders obtained in separate proceedings in India and had requested an adjournment in order to seek the variation of Indian orders and then obtain legal advice and representation in these proceedings. .

Enforcement of Common Law DIFC Court Judgments

In granting summary judgment in favor of Barclays and dismissing the request for adjournment, Judge Henshaw referred to the principles relevant to the enforcement of DIFC judgments which he had previously summarized in FH Capital Limited v Haigh and Others [2020] EWHC 1269 (Comm).

These principles, summarized in the FH Capital case, are as follows:

  • There is no treaty dealing with the recognition and enforcement of judgments between the UK and the UAE. As such, DIFC court judgments can only be enforced at common law.
  • At common law, where a competent foreign court determines that a certain sum is due from one person to another, a legal obligation arises for the debtor to pay that sum, which can be enforced in the courts of England and the Wales.
  • The DIFC Courts and Commercial Court Enforcement Guidance Memorandum includes a useful summary of the common law enforcement requirements for foreign judgments:
    • The judgment of the foreign court must be final and without appeal.
    • The commercial court will not enforce certain types of judgments, for example judgments ordering the payment of taxes, fines or penalties.
    • The foreign court must have had jurisdiction, under English conflict of law rules, to determine the subject matter of the dispute.
  • The commercial court will generally consider the foreign court to have jurisdiction only if the person against whom the judgment was rendered meets the following conditions:
    • Was, at the time of the opening of the proceedings, present in the jurisdiction; Where
    • Was the plaintiff or counterclaimant in the proceeding; Where
    • Subject to the jurisdiction of the foreign court; Where
    • Agreed, before the opening, with respect to the object of the proceedings, to submit to the jurisdiction of the foreign court.
  • A decision of a foreign court can only be challenged before the commercial court under the common law regime on limited grounds. These grounds include:
    • When the judgment was obtained by fraud;
    • Where the judgment is contrary to English public order; and
    • When the proceedings have been conducted in a manner that the commercial court considers contrary to the principles of natural justice.
  • The Commercial Court will not review a judgment of the DIFC Court on the merits. The judgment cannot be challenged on the grounds that it contains an error of fact or of law.
  • In most cases, a party will have the right to seek summary judgment without a trial under Part 24 of the Rules of Civil Procedure.

Applying the test for granting summary judgment, the Commercial Court found that Dr Shetty had no real chance of successfully arguing that the terms of enforcement of the judgment of the UK DIFC court n had not been met and concluded that there were no other compelling grounds for a trial. As a result, the Commercial Court granted Barclays’ motion for summary judgment and denied Dr Shetty’s request for an adjournment, which the court viewed as a deliberate last-minute tactic to seek to delay proceedings.

Comment

The case is a useful reminder of the availability of summary judgment in foreign judgment enforcement proceedings, such as those in the DIFC courts, in England and Wales under common law principles and contains a summary useful of the legal criteria that the English Commercial Court will apply. adopt where required to enforce such judgments under the common law regime, including, in particular, the very limited grounds available for challenging the foreign judgment.

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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/ [ad_1] 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 […]]]>


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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.

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Civil Law Court adjusts hearing in Bilities child custody case https://prosecutebushcheney.org/civil-law-court-adjusts-hearing-in-bilities-child-custody-case/ https://prosecutebushcheney.org/civil-law-court-adjusts-hearing-in-bilities-child-custody-case/#respond Fri, 09 Jul 2021 07:00:00 +0000 https://prosecutebushcheney.org/civil-law-court-adjusts-hearing-in-bilities-child-custody-case/ [ad_1] By Winston Parley The Monrovia Civil Law Court made an adjustment on the day it hears Mr Sidike Musa Bility’s claim for permanent custody of his two minor children from his divorced wife Warti Nancy Robinson – Bility after the court found that Nancy had not filed her statement (response) to Sidike’s information invoice. […]]]>


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By Winston Parley

The Monrovia Civil Law Court made an adjustment on the day it hears Mr Sidike Musa Bility’s claim for permanent custody of his two minor children from his divorced wife Warti Nancy Robinson – Bility after the court found that Nancy had not filed her statement (response) to Sidike’s information invoice.

Mr Bility’s lawyers have asked the court to grant him full and permanent custody of his two minor children given that their mother Nancy does not have a favorable relationship with emotional, psychological, mental, physical, stability and health. child welfare and Safety.

Her lawyers claimed that after the parties were granted the divorce, Nancy celebrated on Facebook with her friends and even scrolled her pregnant belly on Facebook around the world, adding that it was only fitting that the court grants Bility permanent custody of the children.

However, the court indicated, during the appeal of the case for the hearing of the intelligence letter on Thursday, July 8, 2021, that it had found that Nancy’s counsel had not filed their return. on the information invoice.

As a result, the court postponed the hearing from Thursday to Monday, July 12, 2021 at 9 a.m., as it said the case was about the interests and welfare of innocent children.

He added that he was interested in going into the details of the case so that his judgment or opinion could be based on informed information, revealing that the Respondent had just filed her statement and that she was not. still in the possession of the court.

Bility complained that the shared custody arrangement between him and Nancy was not working in the best interests of the children.

He said that from the start of the shared custody arrangement until he filed the information bill, Nancy constantly took the children to school very late or at times failed to take them to. school every Monday, claiming that this behavior continued into the month of March.

He said that as a result of the divorce action he had previously filed against Nancy, he filed for temporary custody with the court and was granted on January 20 of this year to take temporary custody. custody of the children, pending the final decision of the main divorce action.

But Bility said Nancy handed over the children on February 15, 2021 when she was delighted, despite court orders to hand them over immediately.

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Common law constructive dismissal prosecution https://prosecutebushcheney.org/common-law-constructive-dismissal-prosecution/ https://prosecutebushcheney.org/common-law-constructive-dismissal-prosecution/#respond Mon, 28 Jun 2021 07:00:00 +0000 https://prosecutebushcheney.org/common-law-constructive-dismissal-prosecution/ [ad_1] Click here to watch the video Brittany Taylor here with another legal update, and this one is a doozy. You will probably recall that in April, Stuart recorded a vlog regarding the Coutinho case, an unprecedented decision that ruled for the first time that an employee who had been temporarily laid off during the […]]]>


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Click here to watch the video

Brittany Taylor here with another legal update, and this one is a doozy.

You will probably recall that in April, Stuart recorded a vlog regarding the Coutinho case, an unprecedented decision that ruled for the first time that an employee who had been temporarily laid off during the pandemic had been implicitly dismissed from his job.

The move had huge implications for employers, many of whom had no choice but to lay off workers during the pandemic, when business fell sharply or when the government ordered shutdowns. If the temporary layoff of an employee constituted constructive dismissal, even though it happened during the pandemic, amid impossible circumstances, then many employers could face significant legal liability with respect to benefits. starting point. However, less than two months later, another Ontario court ruled on this issue and shockingly came to the completely opposite conclusion.

In Taylor and Hanley Hospitality Inc., the employee in question was laid off from her job at the start of the pandemic in March of last year. She applied for constructive dismissal following this layoff. The employer in this case argued that the Ontario government had asked it to shut down all of its storefronts and some of its stores entirely and that it really had no choice but to lay off employees. .

As in the Coutinho case, the court of Taylor did not really answer the question of whether a unilateral layoff constitutes constructive dismissal, the law is well established that it does, we know the answer to that question. Instead, the question they were trying to answer is a bit more nuanced. Essentially, they were trying to understand whether the Ontario government took away an employee’s right to sue for constructive dismissal at common law when it amended the Employment Standards Act and created emergency leave for infectious diseases.

To quickly summarize this question, you may recall that a few months after the start of the pandemic, the government created emergency leave for infectious diseases. Now this was designed to protect employees who had to take time off work for reasons related to COVID-19, but these changes also indicated that any employee who had been terminated by their employer was retroactively deemed to be on emergency leave. for infectious diseases. This has allowed employers to avoid the maximum time limits for temporary layoffs under the Employment Standards Act, and also provided employees on leave with job protection. However, it also meant that employees who had been forced to take time off could not sue their employer under the Employment Standards Act. However, it was not clear whether this change also removed the possibility for an employee to sue his employer for constructive dismissal at common law.

In Coutinho, the court considered that the changes made to the Employment Standards Act clearly did not preclude an employee’s right to sue for constructive dismissal at common law. It specifically relied on Article 8 paragraph 1 of the ESA which expressly states that the civil rights of an employee are not affected by the provisions of the Employment Standards Act. He also pointed to the Department of Labor’s own guidance on this matter, which appeared to confirm that an employee’s common law rights were not affected by changes to the Employment Standards Act.

The court totally rejected this argument in Taylor, noting that this would create an absurd result when an employee could be on leave for the purposes of Employment Standards Act, but ended by constructive dismissal at common law. The court noted that the common law evolves as times change make it necessary. In this case, the legislature had created emergency infectious disease leave in response to extremely difficult circumstances, including some issues it had itself created, such as mandatory closings. Allowing employees to sue for constructive dismissal at common law would essentially nullify the protection that the legislature had expressly afforded to employers.

So now we have two completely contradictory decisions on exactly the same issue.

Where is this taking us? Unfortunately, that leaves us in limbo for the time being. We will probably have to wait for a higher court to rule on this issue before we have any certainty on this issue, and until then, it remains a complex debate with compelling motives on both sides.

On the one hand, it seems grossly unfair to penalize employers for taking advantage of the help the government has offered them in the form of emergency infectious disease leave. Many employers found themselves in a position where layoff was the only option available to them. If the Coutinho If the case is followed, employers may owe substantial damages to employees, which could result in financial ruin for many.

On the other hand, some employees have now been off work without pay for over a year and with no recourse available to them. Yes Taylor is being followed, many have struggled to find new jobs and frankly could experience financial instability as well.

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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?

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 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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Emergency leave for infectious diseases is not constructive dismissal at common law – employment and hr https://prosecutebushcheney.org/emergency-leave-for-infectious-diseases-is-not-constructive-dismissal-at-common-law-employment-and-hr/ https://prosecutebushcheney.org/emergency-leave-for-infectious-diseases-is-not-constructive-dismissal-at-common-law-employment-and-hr/#respond Fri, 11 Jun 2021 07:00:00 +0000 https://prosecutebushcheney.org/emergency-leave-for-infectious-diseases-is-not-constructive-dismissal-at-common-law-employment-and-hr/ [ad_1] Canada: Emergency leave for infectious diseases is not constructive dismissal at common law To print this article, simply register or connect to Mondaq.com. In May 2020, Ontario Regulation 228/20 was introduced in the Employment Standards Act (ESA), exempting temporary hours or pay cuts related to COVID-19 from the usual layoff and constructive termination provisions. […]]]>


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Canada: Emergency leave for infectious diseases is not constructive dismissal at common law

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

In May 2020, Ontario Regulation 228/20 was introduced in the Employment Standards Act (ESA), exempting temporary hours or pay cuts related to COVID-19 from the usual layoff and constructive termination provisions. We published a detailed bulletin on the new regulations last spring. At the time, while it was clear that the regulation provided legal protection for employers seeking to impose reductions in hours and / or wages due to COVID-19, it was less clear how the regulation would affect workers. common law constructive dismissal requests. On June 7, 2021, the Ontario Superior Court of Justice provided long-awaited guidance on this issue.

In Taylor v. Hanley Hospitality Inc.1, Ferguson J. allowed the defendant employer’s rule 21 motion to strike the employee’s claim for constructive dismissal on the grounds that the settlement applies not only to statutory constructive dismissal claims , but also to common law constructive dismissal requests. The Court specifically ruled that, in accordance with the Regulations, all temporary layoffs related to COVID-19 are deemed to be emergency infectious disease leave (IDEL), retroactive to March 1, 2020. As such, the layoff employee’s layoff is no longer a layoff, and is in fact an IDEL, and normal statutory leave entitlements apply. The court ruled that this means that any common law argument about layoffs has become inapplicable and irrelevant to these types of scenarios under the regulations.

What would you like to know

  • The regulation considers that any layoff related to COVID-19 is an IDEL: The Court ruled that an employee cannot be on leave of absence for the purposes of the ESA and yet be terminated by constructive dismissal for the purposes of the common law. It would be an “absurd result”. Therefore, the Settlement should be interpreted as applying to all constructive dismissal claims.
  • The regulation does not prevent the SEC from replacing common law: The Court noted that there was nothing in the regulations that prevented the ESA from displacing an employee’s common law rights. In fact, the Court of Appeal has already ruled that statutes supersede the common law in a case involving ESA.
  • The context of the regulation is important: The Court noted that it was important to remember the background to IDEL and the regulations. Specifically, that the legislature first created a “problem”, when a state of emergency was triggered, forcing employers to cease or reduce their activities. In doing so, Parliament exposed employers to allegations of constructive dismissal at common law. To avoid these consequences, the legislator amended the SEC to create IDEL and the regulation. On the basis of this background, it should be obvious what the legislature’s intention was in doing so.
  • Coutinho considered “bad in law”: The Court considered at length the recent decision of the Ontario Superior Court in Coutinho v. Ocular Health Center Ltd.2 In Coutinho, on a motion for summary judgment, the Court held that the Regulations did not necessarily exclude a common law action for constructive dismissal. However, Ferguson J. in that case concluded that the analysis in
    Coutinho was “incorrect in law” because it ignored the context of IDEL and the Regulations. Further away,
    Coutinho failed to take into account that his interpretation of the Regulations rendered the statute meaningless and, therefore, contravened the rules of statutory interpretation.

Summary of the facts

Candace Taylor was temporarily laid off from her job on March 27, 2020. On August 18, 2020, Ms. Taylor was recalled to her job and returned to her job. Ms. Taylor nevertheless brought an action against her employer for constructive dismissal during the period of her alleged temporary layoff. In her request, Ms. Taylor acknowledged that the temporary layoff was linked to the COVID-19 pandemic. The employer, Hanley Hospitality, brought a Rule 21 motion to strike Ms. Taylor’s complaint on the grounds that under the Regulations Ms. Taylor’s layoff was in fact an IDEL and, therefore, could not be constructive dismissal under the law. or common law.

The court’s decision

In the ruling, Justice Ferguson took judicial notice that hundreds of thousands of Canadians have seen their jobs cut short by the COVID-19 pandemic, which the Ontario government passed an emergency order requiring many businesses (including the defendant) to close their stores and limit their services and that the province has taken legislative action to deal with the impacts of the pandemic on jobs.

Justice Ferguson reviewed Ontario Regulation 228/20 noting that under the Regulation, a temporary reduction or termination of an employee’s working hours by the employer for reasons related to COVID-19 does not constitute constructive dismissal.

Judge Ferguson then turned to Coutinho v. Ocular Health Center Ltd. in which Broad J. ruled that Rule 228/20 did not preclude an employee from making a common law constructive dismissal claim in connection with a layoff without pay for reasons related to COVID-19. Judge Broad’s decision in
Coutinho Focused on section 8 (1) of the Regulations which provides that (subject to limited circumstances that were not present) no civil remedy by an employee against his employer is affected by the ESA. In addition, Justice Broad referred to the Ontario Ministry of Labor guide which stated that the regulation only affected what constituted constructive dismissal under the ESA and did not address what constituted dismissal. disguised as common law. Therefore, the Justice Commission concluded that the common law constructive dismissal claims were not affected by the settlement.

Ferguson J. concluded that Coutinho had been badly decided. According to Judge Ferguson, it is breaking the rules of statutory interpretation to give an interpretation which renders the meaning of a law, which happened in
Coutinho. Ferguson J. also ruled that subsection 8 (1) of the ESA did not support the proposition that Justice Broad had espoused, but rather that subsection 8 (1) had been interpreted by the courts as simply indicating that ESA no. ‘does not set out an exclusive forum for dealing with matters set out in the ESA, and that subsection 8 (1) had never been interpreted as preventing the ESA from supplanting the common law. On the contrary, the Ontario Court of Appeal has already stated that laws passed by the legislature supersede the common law and that it is a mistaken premise that the common law continues to operate independently of the ESA. Finally, Justice Ferguson ruled that the regulations can and do change the common law, meaning that the reductions or elimination of COVID-19-related hours of work are not layoffs or constructive dismissals. , but are considered as statutory holidays.

Granting the employer’s motion and dismissing the action, Ferguson J. concluded by stating that the Ontario government recognized the injustice inherent in subjecting employers to wrongful dismissal claims as a result of the government’s imposition of a state of emergency, and therefore adopted the regulations. Justice Ferguson noted that if the government had not taken this step, it would only have served to worsen the economic crisis of the pandemic.

Footnotes

1 2021 ONSC 3135

2 2021 ONSC 3076

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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In absence of de facto marriage, judge upholds marital rights of Baldwin County widow https://prosecutebushcheney.org/in-absence-of-de-facto-marriage-judge-upholds-marital-rights-of-baldwin-county-widow/ https://prosecutebushcheney.org/in-absence-of-de-facto-marriage-judge-upholds-marital-rights-of-baldwin-county-widow/#respond Wed, 02 Jun 2021 07:00:00 +0000 https://prosecutebushcheney.org/in-absence-of-de-facto-marriage-judge-upholds-marital-rights-of-baldwin-county-widow/ [ad_1] Joseph Harvey Precise Jr., 49, can finally rest in peace. His body had been held in the Baldwin County Coroner’s office for 20 days last Wednesday when his mother, Julia Precise, and his three-year-old wife, Jessica Precise, met in Judge Jody Bishop’s courtroom. Disabled coal miner and father of six – he conceived a […]]]>


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Joseph Harvey Precise Jr., 49, can finally rest in peace. His body had been held in the Baldwin County Coroner’s office for 20 days last Wednesday when his mother, Julia Precise, and his three-year-old wife, Jessica Precise, met in Judge Jody Bishop’s courtroom.

Disabled coal miner and father of six – he conceived a pair of 17-year-old twins and a set of 14-year-old quadruplets with his ex-wife Dalynda “Hope” Precise – Joseph died suddenly on May 6 of natural causes.

Baldwin County Coroner Dr Brian Pierce said his office typically reviews all deaths without supervision and the final disposition of remains is settled by the next of kin.

“There is usually a pecking order starting with the spouse if the deceased is married, a parent if he is single, a brother if there is no relative, cousins, aunts or uncles and on any the line, ”he said. “But it has become more confusing with the abolition of common-law marriage in Alabama, and if anyone disputes possession of the remains, the probates judge is usually required to verify. But unfortunately, this is a situation where the gentleman who died has family issues. ”

Joseph and Hope were reported to have been parties to a “high-conflict divorce,” a contested proceeding in which details such as custody arrangements and child support obligations cannot be determined until years after the parties have separated.

Joseph and Hope separated on September 5, 2015, and Joseph filed for divorce a month later. The following summer, while the divorce action was pending, Joseph met Jessica, who had never been married and had no children.

Facebook | Jessica and Joseph Precise tied the knot about a week after his divorce from his previous wife was finalized on paper, apparently in violation of the state’s 60-day ban on the right to remarry.

On July 18, 2017, a hearing began in Shelby County where a judge admitted the divorce, although the final judgment was not signed until September 19. Joseph and Jessica tied the knot on September 27, 69 days after the hearing, but just a week after the documents were timestamped.

When Joseph passed away earlier this month, his mother claimed her marriage to Jessica was void, citing the 60-day waiting period to remarry after a divorce. Julia sued Jessica and Pierce, further arguing that Jessica could not claim the common-law marriage because the state abolished her recognition in January 2017.

“The argument is who has custody and who has the legal authority to decide the terms of the burial,” plaintiff’s attorney, Blake Lowe, told court. Both parties testified that their relationship was “toxic” and although there had been some improvements over time, Julia would never recognize the validity of the marriage.

“She never accepted me or our marriage,” Jessica said. “She’s only spoken two sentences to me in four years, once threatening to hit me with a McDonald’s tray and the other treating me badly.”

Julia said his relationship with Joseph was improving and assumed he only rushed to remarry Jessica because the divorce agreement prohibited Joseph from visiting children if he was not married and cohabited.

“I accepted that he was in a relationship with Jessica, but not the marriage,” Julia said. “How can I accept something that is not true?” “

Joseph’s mother said he wanted a traditional funeral and burial near Montgomery, in a location that would be convenient for his family. His wife said that was not his intention at all, that Joseph was adamant that he be cremated without his family seeing his body. Jessica told the court they discussed buying necklaces for each of her children, along with lockets for her ashes.

The six children were also named complainants in the lawsuit, but Bishop dismissed them before the hearing because they were under 18.

Like more than half of Americans, Joseph Precise died without a will. More importantly, she was also missing a simpler document officially authorizing a “right of disposition officer,” said attorney Mary Murchison, who represented Jessica in the case.

“It’s probably a case of first impression,” Murchison told Lagniappe last week. “You’ve heard the term ‘unintended consequences’, but when they abolished common-law marriage, that is one of the things that happened. We have an archaic law known as the 60-day post-divorce ban, preventing you from remarrying anyone other than your ex-spouse. But recently you have a series of cases in [the Supreme Court of the United States] defining marriage, speaking of the fundamental right to marry. Today you must have a high enough interest in the state to interfere with these rights and [the 60-day law] does not reach a level that would deprive someone of their fundamental rights.

Murchison cited the landmark civil rights case Obergefell v. Hodges at the federal level, but also a state case, Krug v. Krug, decided after a recently married man was killed while deployed in the Vietnam War. Raymond and Clara Ann Krug were married in Georgia on December 31, 1969, just one week after Clara Ann divorced her first husband in Coffee County, Alabama.

In the days leading up to his January 19 deployment, Raymond named Clara Ann as beneficiary of his life insurance, opened a joint account in her name, signed a will leaving all property to his wife, and gave her a proxy. In the months leading up to his death in a helicopter crash on May 14, “they exchanged letters almost daily and recorded frequent. He addressed his mail to Mrs. Raymond H. Krug Jr. He wrote about his desire to start a family and he began to assign obligations to her and the obligations were payable to her and to him.

After his death, Krug’s parents challenged his marriage to Clara Ann, citing the 60-day restriction. But the Alabama Supreme Court recognized the protections offered by common law marriage.

“It is the well-established rule that if the parties marry in good faith when in fact there is a legal impediment to their marriage, and they continue to cohabit as male and female after the removal of prevention, the law presumes a community. marriage law, ”the court concluded. “The only obstacle or obstacle to this marriage in Alabama was the 60-day waiting period, and once that has passed, a common-law marriage would be presumed.”

But since common-law marriage is no longer part of the equation, the Precise case would target the 60-day waiting period.

“Do we take away the fundamental right of someone with an artificial ban on remarrying, or do we recognize if these people acted in good faith, tried to obey the law and were in a committed relationship? Murchison asked. “It was a real marriage – this man loved this woman and he was coming out of a horrible divorce. For the first time in a long time, he was happy. Ultimately it will be [Jessica’s] marital rights as a wife. It will be very disturbing if it is stripped. Most importantly, she knew his last wishes and couldn’t fulfill them because these people came in and said you weren’t his wife.

In an order signed Thursday, Justice Bishop agreed. Pierce was ordered to return Joseph’s remains to his wife.

“The defendant presented a valid marriage certificate showing that she was the legal wife of the deceased,” Bishop wrote. “The validity of the said marriage was not contested by any of the parties to the marriage nor by any other party, including the applicant, during the husband’s lifetime… Marriage is not only recognized by the courts as a fundamental right, but a ceremonial marriage. is encouraged by public policies for the stability of the family and society. At the time of the defendant’s marriage to the deceased, his divorce decree was final and had not been appealed. The court concludes that there is no compelling public interest in annulling the marriage… and rejects the plaintiff’s arguments to that effect.

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The Myth of “De facto Marriage” – Family and Marriage https://prosecutebushcheney.org/the-myth-of-de-facto-marriage-family-and-marriage/ https://prosecutebushcheney.org/the-myth-of-de-facto-marriage-family-and-marriage/#respond Mon, 17 May 2021 07:00:00 +0000 https://prosecutebushcheney.org/the-myth-of-de-facto-marriage-family-and-marriage/ [ad_1] To print this article, simply register or connect to Mondaq.com. Our lawyer in the Private Client team, Elizabeth Pearson, reviews the law surrounding the cohabitation provision in the event of death. “But we’re husband and wife in a common-law relationship… aren’t we?” Unfortunately, there is no such thing. Although cohabiting couples are widely regarded […]]]>


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

Our lawyer in the Private Client team, Elizabeth Pearson, reviews the law surrounding the cohabitation provision in the event of death.

“But we’re husband and wife in a common-law relationship… aren’t we?” Unfortunately, there is no such thing.

Although cohabiting couples are widely regarded as the ‘fastest growing type of family in the UK’, the law in England regarding the protection of cohabitants in the event of death lags far behind what most people do. would expect it to be. We are often contacted by people who mistakenly believe that the law will protect those in long-term relationships, who live together “as a common-law husband and wife.” However, the reality is that the only way to be sure that your partner will inherit anything when you die is to have a valid will in place.

What happens if there is no will?

If a partner of a cohabiting couple dies without a will, his succession will pass under the regime of intestate succession. These rules establish an “order of precedence” in the law as to who should receive the estate of the deceased. When a couple is not married, all children will be at the top of this list, but if there are no children, the law pushes its way through a list of blood relatives, including including parents, siblings, nephews / nieces and beyond. Unmarried partners are not at all in the list of family members who inherit under the rules of the intestate.

Minimum protection is offered to cohabitants under the Inheritance Act 1975 (Provision for Family and Dependents) (the “1975 Act”). The 1975 law enumerates those who could expect to receive a “reasonable financial provision” upon the death of an individual, and allows them to make a claim against an estate if they are not, either by will or by will. the rules of intestate succession.

A partner who has been living with the deceased for at least 2 years before his death can claim a financial provision claim under the 1975 law. The court will then determine whether there has been a failure to make reasonable financial arrangements from the start. of the deceased’s estate, which would be reasonable for the maintenance of this unmarried partner. However, the court has discretion to decide what provision is made from the estate, if any, and the process can be costly and time consuming.

It should be noted that some assets could be passed on to a surviving partner without a will. If a couple owns a property together or has joint bank accounts, those assets
could automatically pass to the surviving owner. However, the position should be carefully considered to ensure that this will be the case, as not all properties, in particular, are jointly owned in this way. Even if they are owned in this way, if the couple has wishes about how other family members (especially children) will benefit from these assets as well, care should be taken to ensure that they are owned. in a way that allows it.

The simple solution to avoiding this uncertainty is to take the proper advice and put together a will. This allows both partners to have control over where their property will be passed on upon their death and can give them the peace of mind that arrangements will be made for their loved ones.

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 are wills always public?

Winckworth Sherwood

The recent ruling confirming that the will of the late Prince Phillip will be kept sealed has opened the debate on why the rest of us are required to make our last wills and wills public after our death.

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Holding the Phone: Employees Can File Common Law Wrongful Dismissals in Oregon for Seeking Legal Advice About Their Jobs | Small https://prosecutebushcheney.org/holding-the-phone-employees-can-file-common-law-wrongful-dismissals-in-oregon-for-seeking-legal-advice-about-their-jobs-small/ https://prosecutebushcheney.org/holding-the-phone-employees-can-file-common-law-wrongful-dismissals-in-oregon-for-seeking-legal-advice-about-their-jobs-small/#respond Thu, 01 Apr 2021 07:00:00 +0000 https://prosecutebushcheney.org/holding-the-phone-employees-can-file-common-law-wrongful-dismissals-in-oregon-for-seeking-legal-advice-about-their-jobs-small/ [ad_1] March 3, 2021, at Rohrer v. Oswego Cove, LLC, the Oregon Court of Appeal overturned the lower court’s dismissal of an employee’s common law wrongful dismissal claim for seeking legal advice about her employment. The court found that because the employee’s allegedly protected activity did not entitle her to adequate legal recourse under the […]]]>


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March 3, 2021, at Rohrer v. Oswego Cove, LLC, the Oregon Court of Appeal overturned the lower court’s dismissal of an employee’s common law wrongful dismissal claim for seeking legal advice about her employment. The court found that because the employee’s allegedly protected activity did not entitle her to adequate legal recourse under the Oregon Whistleblower Act – ORS 659A.199 – she could instead argue a request for wrongful dismissal at common law.

Background

The plaintiff worked as an assistant manager for the defendant, an apartment rental company. While the Applicant was employed, one person repeatedly called the rental office and “harassed” the Applicant by asking inappropriate questions and making “masturbation noises”. The complainant reported the phone calls and her employer allegedly “blew up” the situation. The complainant complained to her supervisor that the employer’s inaction compromised her safety and stated that she believed it was illegal for an employer to allow its employees to be subjected to such calls. The claimant also contacted a lawyer for legal advice on the criminal harassment calls. The complainant alleged that her employer was upset that the complainant had sought legal advice from a lawyer and had terminated her employment shortly thereafter.

The plaintiff brought an action alleging, among other things, a common law claim for wrongful dismissal. Specifically, she alleged that her employer “retaliated against and discriminated against [her], thus interfering with an important societal obligation and / or terminated [her employment] while pursuing important rights related to her role as an employee, including, but not limited to, the search for a lawyer. “

The employer filed a motion to dismiss the common law wrongful dismissal request, arguing that it was replaced by the Oregon Whistleblower Act (ORS 659A.199), which provides legal recourse to an employee who “has in good faith reported information that the employee believes to be evidence of a violation of any state or federal law, rule or regulation. The court of first instance allowed the employer’s request, dismissing the request.

Oregon Court of Appeal Decision

The claimant appealed against the rejection of the claim by the court of first instance. The applicant acknowledged that “[a] the common law wrongful dismissal complaint will not exist if there is already an available and adequate legal remedy ”, but argued that she had not alleged that she suffered retaliation for reporting a breach of employment. ‘a state or federal law, rule or regulation, but rather because she had contacted a lawyer for legal advice on criminal harassment appeals.

In overturning the trial court’s order, the appeals court distinguished between a number of Oregon retaliatory cases that analyze the applicability of wrongful release requests at common law. The Court of Appeal disagreed with the employer’s general conclusion that common law claims for wrongful dismissal are not recognized under Oregon law, since some claims in retaliation cases are not based on an allegation that the complainant “reported” illegal activity. As the complainant alleged that her employer retaliated against her for seeking a lawyer and not for reporting what she believed to be unlawful conduct, RHA 659A.199 did not provide her with a legal remedy. adequate. The court noted that the employer had not identified any other legal recourse for such a claim. As a result, the appeals court overturned and remanded the decision.

Practical effect

Court of Appeal’ Rohrer The ruling emphasizes the need for employers and their lawyers to examine the specific allegations underlying an employee’s claim for retaliation in order to determine whether the employee may be entitled to remedies under the common law. If the employee bases his reprisal complaint on his “report” of conduct that he believes in good faith to constitute a violation of any law, rule or regulation, he is unlikely to be entitled to such recourse. On the other hand, if the alleged protected activity is not specifically addressed in ORS 659A.199, that is to say, there has been no “report” or other statutory remedy, then it may be necessary to defend a common law claim.

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First Emirati female common law judge appointed to Dubai DIFC Courts https://prosecutebushcheney.org/first-emirati-female-common-law-judge-appointed-to-dubai-difc-courts/ https://prosecutebushcheney.org/first-emirati-female-common-law-judge-appointed-to-dubai-difc-courts/#respond Mon, 08 Feb 2021 08:00:00 +0000 https://prosecutebushcheney.org/first-emirati-female-common-law-judge-appointed-to-dubai-difc-courts/ [ad_1] Four new judges have been appointed to the courts of the Dubai International Financial Center (DIFC), including the first female UAE common law judge appointed to the United Arab Emirates. The new judges were sworn in on Monday before Sheikh Mohammed bin Rashid Al Maktoum, vice president and prime minister of the United Arab […]]]>


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Four new judges have been appointed to the courts of the Dubai International Financial Center (DIFC), including the first female UAE common law judge appointed to the United Arab Emirates.

The new judges were sworn in on Monday before Sheikh Mohammed bin Rashid Al Maktoum, vice president and prime minister of the United Arab Emirates and ruler of Dubai.

Lord Angus James Scott Glennie and Sir Peter Henry Gross were appointed judges of the Court of Appeal (CA) while Nassir Hashem Nasser Abdullah Al Nasser and Maha Khalid Mohammed Al Mheiri were appointed judges of the Court of First Instance (ICT) in the DIFC courts.

The four judges were sworn in in a virtual ceremony and pledged to uphold the rule of law and justice, according to a statement.

As the first female Emirati judge appointed to the courts of first instance, Maha Al Mheiri initially joined the DIFC courts in 2012 as a case progression officer and was appointed bailiff in 2013, before becoming a judge of the Small Claims Court (SCT) in 2017..

Angus Glennie and Peter Gross have both served extensively in the UK.

Nassir Al Nasser, the first Emirati to join the DIFC Courts, was appointed Judicial Officer of the DIFC Courts in November 2012. In 2017, he was appointed Judge and Registrar of the Small Claims Court (SCT).

Zaki Azmi, Chief Judge, DIFC Courts, said: “In addition to strengthening our current panel of judges with leading international expertise, the DIFC Courts have taken a new step by appointing the next generation of Emirati judges with transsystemic through civil law and common law. We are also very proud to be the first court in the world to appoint an Emirati female judge in a common law court. “

Among the new initiatives outlined in the DIFC Courts Strategy for 2020-2021, the Emirati Lawyer Mentorship Program and the UAE Judicial Excellence Development have been introduced, which are specifically designed to meet a three-tier strategy consisting of to: increase the number of Emiratis within the organization; develop and retain talent and incubate new talent through graduate programs.

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