Dan Michaluk

daniel-michaluk@hicksmorley.com (Dan Michaluk) — Fri, 21 Nov 2008 20:35:15 GMT

On November 18th, the British Columbia Court of Appeal dismissed an appeal in which allegations of spoliation were made. The outcome is not remarkable, as the claim was based on the routine destruction of records pursuant to policy before litigation was reasonably contemplated. In a testament to how interesting this issue has become, however, Madam Justice Rowles went on gratuitously about spoliation in great detail, describing the debate about the doctrine in both Canadian and American law. If you too are interested in the issue, this case is worth a read.

Holland v. Marshall, 2008 BCCA 468 (CanLII).

More on Auto Trade Tensions

Fri, 21 Nov 2008 20:00:53 GMT

Bloomberg has a good overview of the issues here. One part that struck me was the following: German Chancellor Angela Merkel said her government will decide on an aid request from GM's Opel unit by Christmas. Opel asked for ``somewhat...

Bloomberg has a good overview of the issues here. One part that struck me was the following:

German Chancellor Angela Merkel said her government will decide on an aid request from GM's Opel unit by Christmas. Opel asked for ``somewhat more than'' 1 billion euros in credit guarantees, said Carl-Peter Forster, GM's Europe chief. The state government in Hesse, where Opel employs 15,000 people, agreed to give the company and regional parts suppliers loan guarantees of as much as 500 million euros.

So it appears that Germany may give subsidies to GM's European subsidiary. By contrast, I have not heard any suggestion that U.S. bailout money would go to the U.S. operations of foreign car-makers. Is the fact that these foreign car-makers don't need a bailout sufficient to make the situations un-"like" and thus justify different treatment? (Not in a GATT Article III sense, just speaking generally).

Inquiry of the EU Commission on Misuse of Patent Rights, Vexatious Litigation or other Means - Preliminary Results.

nospam@example.com (Jon Katz) — Fri, 21 Nov 2008 17:25:00 GMT

Top News from the European Commission (24 November to 21 December 2008) reports as follows:

"On 15 January 2008 the European Commission launched an inquiry into competition in the pharmaceuticals sector. Final results are expected in Spring 2009.

The inquiry is a response to indications that competition in Europe's pharmaceuticals markets may not be working well: fewer new medicines are being brought to market, and the entry of generic medicines sometimes seems to be delayed. The inquiry has therefore looked at the reasons for this.

In particular, the inquiry has examined whether agreements between pharmaceutical companies, such as settlements in patent disputes, have blocked or led to delays in market entry. It has also looked into whether companies may have created artificial barriers to entry (through the misuse of patent rights, vexatious litigation or other means). The sector inquiry does not aim to establish infringements of EC competition law by individual companies (Articles 81 and 82 EC)."

Mrs Neelie Kroes (right)

On Friday November 28, 2008, there will be a Presentation of Preliminary Results of Inquiry in Pharmaceutical Sector: A preliminary report on the results of the Commission's sector enquiry into pharmaceuticals will be presented. The inquiry's findings will, if necessary, allow the Commission or national competition authorities to focus any future action on the most serious competition concerns, and to identify remedies to resolve the specific competition problems in individual cases. Mrs Neelie Kroes, Competition Commissioner, will make opening remarks at 9.30 and DG Competition will present the results at 10.00. The full programme is available via this link.

China Factories. Do You, You, Feel Like I Do? Part II

dan@harrismoure.com (Dan Harris) — Fri, 21 Nov 2008 17:06:24 GMT

There ought to be a law against quoting Peter Frampton twice in one week. The other day, I did a post on how to know, in a blink, whether the factory with whom you are contemplating a business relationship is a good one. We received some comments with such excellent additional gut-check type indicators, I felt a second post was warranted. So here goes. Ted Cruise recommends the following: -- Check the lunch of the...There ought to be a law against quoting Peter Frampton twice in one week. The other day, I did a post on how to know, in a blink, whether the factory with whom you are contemplating a business relationship is a good one. We received some comments with such excellent additional gut-check type indicators, I felt a second post was warranted. So here goes. Ted Cruise recommends the following:

-- Check the lunch of the employees. Most businesses provide lunch and small increases in cost give large improvements in food quality. Some businesses feed their employees lunch to the tune of 1 RMB a day. you wouldn't feed that stuff to your dog. At 5-8 RMB a day you get very tasty and nutritious food. For many factory workers this may be the best meal of the day. Ask their food cost. -- Does the manager know the employee's names? -- What is the supervisor/worker ratio? A ratio anywhere near 5-1 indicates that the workers are disposable and need to be closely supervised. Likely this means no training. Any ratio over 15-1 indicates better training and a need to retain employees longer. Ask about the training program. -- Safety and hygiene: are basic safety features in place? Do you see signs of work related injuries? Do you feel sick after spending time on the production floor? Do the employees seem healthy?

I wholeheartedly concur. All of these essentially get at one point: how does the company treat its workers. I remember once visiting a factory in Yantai owned by one of my firm's Chinese clients. I was shocked at how nice the facilities were for the workers. They lived in what appeared to be a very new, very well constructed high end building. The first floors of the building were offices, with living quarters above. During our meeting, the executives bragged about the perks they gave the employees (high quality lunches, a large game room, vans to take them into town when they wanted to go). I asked what they gained by providing all this to their employees and their immediate response was "good employees." I buy it. This is one of the better run companies with whom I have worked, anywhere. Jared checked in with another one I love:

One other qualifying factor I often use is comparing the owner's car to the investment in technology/quality. If the car is much nicer than his factory investments, I tend to find the factory is not worth my business in the long run.

Again, I completely agree. Even though I am from Michigan (you know Michigan, that's the state where the US used to produce cars) and love cars, there is such a thing as excess and I have been to Chinese factories where the owner's new $150,000 car is parked out front and the factory is filthy and run down. The conclusion to be drawn there is that the owner is not trying to build up a business for the long haul; he is in it for the quick bucks.

German Government Mooting to Stop Forum Shopping for Tortious Acts on the Internet

nospam@example.com (Jon Katz) — Fri, 21 Nov 2008 17:05:00 GMT

At present, the German code of civil procedure (Zivilprozessordnung, ZPO) stipulates in Sect. 32 that for lawsuits in cases of tortious acts a court in the circuit of which the tortious act has been committed shall be deemed competent.

In view of the ubiquitousness of the Internet, any of the various courts spread throughout Germany and generally comptentent for tort matters can be selected by a plaintiff when playing Forum Shopping. As it is well known amongst law experts which of the regional or district courts might be more than others inclined to show a tendency towards the plaintiff's general position, the defendant might be in a less privilged situation.

Now Heise Newsticker reports that the German Ministry of Justice is mooting a Bill to stop this kind of Forum Shopping for Internet-related tort cases.

(Foto (C) by hartboy under a CC license via Flickr.)

Xenophobia Rising?

Fri, 21 Nov 2008 16:55:22 GMT

The economy, of course, is on everyone's minds these days, and when asked how it's likely to affect my field -- immigration -- I think of the obvious: fewer jobs, fewer remittances to send home, and eventually, fewer immigrants, particularly the low-skilled and undocumented. But here's a grimmer possible outcome: increased xenophobia and violence against immigrants. We've seen it before, from Marseilles to Johannesburg -- when unemployment rises, so does anti-immigrant sentiment, which quickly turns to violence against those whom even the police often don't protect. Indeed, we see politicians exploiting racial hatreds in order to get elected, and local officials at best turning a blind eye to abuse of migrants, and at worst, participating in the violence.
This concern may underlie yesterday's press release in which the UN Independent Expert on minority issues, Gay McDougall (right), and the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related forms of intolerance, Githu Muigai (left), expressed "grave concern" over the recent increase in violence against Roma in Europe. The Roma, who migrated to Europe from India in the 11th century, have continually suffered extreme discrimination by state actors, from genocide at the hands of the Nazis to recent reports of coercive sterilization by the Czech government and police brutality in Greece and Romania. In McDougall's words, “Extremists may feel they have license for their attacks when the message they receive from government activities in other spheres is also that the Roma are a problem.”
So what does this all have to do with immigration? While Roma may be citizens of the country in which they reside, their nomadic lifestyle may lead them to cross borders without authorization. Even in states where they are citizens, Roma may face numerous obstacles to obtaining residency documents including exclusion as the "other". This lack of regularized legal status combined with government neglect or hostility is an explosive combination that may lead to severe violence, such as the incident in the Czech Republic that prompted the UN experts' press release, in which far-right extremists attempted to attack a Roma community with stones and petrol bombs. As the world economy faces perilous times, we must be particularly vigilant in ensuring that financial woes aren't translated into increased assaults against migrant communities. As McDougall suggests:

Governments must strongly condemn such actions. Moreover they must be committed to finding ways to create safe environments for all by carefully monitoring and strengthening their own anti-racism activities, through leadership and public education, by swiftly denouncing hate speech and prosecuting the racist and violent actions of others in society.

'Nuff said.

The Auto Bailout and Trade Tensions

Fri, 21 Nov 2008 14:19:15 GMT

It appears that the multi-billion dollar aid package that will likely be given to the U.S. auto industry has not gone unnoticed by our trading partners: "We will look very carefully at the details of the proposed aid package to...

It appears that the multi-billion dollar aid package that will likely be given to the U.S. auto industry has not gone unnoticed by our trading partners:

"We will look very carefully at the details of the proposed aid package to the U.S. auto industry, in order to ensure compliance with international trade rules and assess the potential impact which it may have on trading partners," said Peter Power, trade spokesman for the European Commission, the E.U.'s executive arm.

(http://money.cnn.com/news/newsfeeds/articles/djf500/200811140622DOWJONESDJONLINE000418_FORTUNE5.htm)

And:

"We are in the process of analysing the plan. The plan has not yet been presented yet. Of course, if it is illegal state aid, we will act at a WTO level," Barroso told Europe 1 radio.

"In any case, we are in the process of preparing a (European) plan that is not discriminatory. It is a plan that supports cleaner, more environmentally-friendly cars," he added.

(http://www.reuters.com/article/marketsNews/idUSLE47953820081114)

Proving a violation here will not be that easy, though. There's the possibility of an "adverse effects" challenge, but that would have to wait until there are some adverse effects. In addition, there may be some restrictions on which companies are eligible (described here), with foreign producers that have factories in the U.S. excluded.

It may be that the EU statements are simply designed to discourage the U.S. from inserting other discriminatory provisions into the aid package.

Is there really any question about the test for part performance in Alberta

Fri, 21 Nov 2008 06:31:52 GMT

Cases considered: G 400 Holdings Ltd. v. Yeoman Development Company Limited, 2008 ABQB 667 PDF Version: To follow. I apparently spoke too soon. In March 2008, I noted that the Alberta Court of Appeal decision in Booth v. Knibb Developments Ltd., 2002 ABCA 180 had settled any doubts about which test for part performance applies in Alberta: [...]

Cases considered: G 400 Holdings Ltd. v. Yeoman Development Company Limited, 2008 ABQB 667

PDF Version: To follow.

I apparently spoke too soon. In March 2008, I noted that the Alberta Court of Appeal decision in Booth v. Knibb Developments Ltd., 2002 ABCA 180 had settled any doubts about which test for part performance applies in Alberta: see “The Doctrine of Part Performance: Still Strict After All These Years”. There are two tests for determining what acts of part performance are sufficient to allow enforcement of an oral agreement concerning land, both originally formulated by the House of Lords. The older and stricter test was set out in Maddison v. Alderson (1883), 8 App. Ca. 467 at 478 (H.L.); it requires that the acts relied upon by the claimant as part performance “be unequivocally, and in their own nature, referable to some such agreement as that alleged.” That test was relaxed considerably in England in 1976, with the decision in Steadman v. Steadman, [1976] A.C. 536. In Steadman, the House of Lords held that the acts of part performance need refer only on the balance of probabilities to some contract to which the claimant was a party. Although a number of Alberta courts applied the more relaxed test from Steadman in the 1980s, in 2002 the Alberta Court of Appeal unequivocally adopted the traditional, stricter test from Maddison v. Alderson. That was the end of the influence of Steadman in Alberta - until the October 30, 2008 decision of Madam Justice Barbara Romaine in G 400 Holdings Ltd. v. Yeoman Development Company Limited.
(more…)

B.C. Government Seeking Input on Adult Guardianship Regulations

s.rule@shawlink.ca (Stan Rule) — Fri, 21 Nov 2008 06:30:45 GMT

The British Columbia Minstry of Attorney General is inviting comments on proposed regulations to implement the Adult Guardianship and Planning Statutes Amendment Act, 2007. You can link to the draft regulations, as well as draft Adult Guardianship plans and incapacity planning documents here.

The Adult Guardianship and Planning Statutes Amendment Act, 2007 , will modernize British Columbia's adult guardianship laws, and amends the Power of Attorney Act, and Representation Agreement Act. This legislation was passed by the Legislative Assembly last year, but is not yet in force.

You may send your comments by no later than December 15, 2008 (which is not much time), by email to AGWEBFEEDBACK@gov.bc.ca .

On November 21

Fri, 21 Nov 2008 05:00:00 GMT

On this day in ...
... 1898 (110 years ago today), radium was discovered by Marie Sklodowska Curie and her husband Pierre Curie. It was 1 of 2 elements the couple isolated that year; the other was polonium. Together the discoveries of la radioactivité -- the word she coined the same year -- brought the world a step closer to the nuclear age. Born in Warsaw on November 7, 1867, Marie Curie (left) would become the 1st woman professor at the Collège de France, the Paris institution of higher education founded in 1530. She's the only woman ever to have won 2 Nobel Prizes, Physics in 1903 for and in Chemistry in 1911. (As we've posted, the 1st depended on her husband's intervention.) She died in Savoy, France, in 1934. (photo credit)
... 2004, having met for 5 days, the "informal group of official creditors" known as the Club de Paris/Paris Club agreed to a 3-phase reduction, by 80%, of Iraq's external debt, a move that amounted to tens of billions of dollars of debt relief.

Cabela’s Settlement Includes Audit Requirement

Fri, 21 Nov 2008 03:06:13 GMT

Last week we reported on the settlement agreement that Cabela’s, the outdoor supply store, entered into the the Bureau of Industry and Security (”BIS”) to settle allegations that the company had exported 76 rifle scopes without the required BIS licenses. This was the company’s second settlement of illegal export charges, the first covering allegations [...]

The settlement documents are now available on the BIS website and provide details not available in the press release that served as the basis for our initial report on the settlement. Not surprisingly given Cabela’s repeat offender status, the settlement also includes a requirement that Cabela’s conduct a compliance audit substantially in accord with BIS’s Export Management System audit module.

The audit requirement imposed in the settlement agreement is purely an internal audit. Even so, the audit module requires extensive review of company compliance procedures, including compliance with many outmoded requirements. This is because the audit module was created in 2000 and hasn’t been revised since then. Extensive coverage in the audit module is devoted to inquiring whether the company’s export procedures provide instructions on filling out and retaining copies of the Shipper’s Export Declaration (”SED”), even though filing an SED is now a violation of applicable regulations. The module also seems to hark back to the pre-Internet dark ages by requiring the company to keep hard copies of the Export Administration Regulations and the Denied Party List.

It seems to me that if BIS wants to tout the EMS audit module as the touchstone of export compliance, it might want to update it a little more often than every decade.

Dan Michaluk

daniel-michaluk@hicksmorley.com (Dan Michaluk) — Fri, 21 Nov 2008 01:53:00 GMT

On November 19th, the British Columbia Court of Appeal dismissed a defendant’s motion to postpone the production of a non-privileged video surveillance tape so it could better test the plaintiff’s credibility in oral discovery. The dispute was about the discretion to order relief from production that is granted expressly by Rule 26(1.2) of the British Columbia Supreme [...]

The dispute was about the discretion to order relief from production that is granted expressly by Rule 26(1.2) of the British Columbia Supreme Court Rules. The essence of the Court of Appeal’s decision is captured in the following excerpt:

In my view, it is the extensive scope of this common law disclosure rule that created the need for reasonable limitations. Stated in another way, it is the “slavish” application of R. 26(1) which informs the scope of R. 26 (1.2).

The appellants seek to distinguish these decisions under R. 26(1.2) on the basis that they do not involve a key issue of credibility. They submit that, in this case, an order postponing the production of the surveillance videotapes would give them the opportunity to test the willingness of the respondent to lie about her claim. They argue that, in the absence of such an order, the respondent might tailor her evidence to fit the scenario depicted in the videotape.

With respect, I do not accept this argument as representing a valid purpose for an application of R. 26(1.2). In this case, there has been no factual determination regarding the respondent’s truthfulness, or lack thereof. This is the appellants’ theory of liability, and it is for them to establish in the course of the trial. Nor am I persuaded that the Rules of Court were intended to be used in a manner that would displace a right of a party granted under them, in favour of creating an opportunity for an adverse party to advance their theory of a fact in issue.

This excerpt followed a detailed lead-in on how Rule 26(1.2) has been applied to protect privacy (by allowing for the redaction of non-relevant and sensitive information) and to encourage proportionality in production. The only other jurisdiction with a comparable provision is the Federal Court (see section 230 of the Federal Court Rules).

Stephen v. McGillivray, 2008 BCCA 472.

Market Access for Small, Developing Countries

Fri, 21 Nov 2008 00:38:05 GMT

Following-up on this old post, apparently the WTO can work for the little guy: Fiji Kava Council chairman, Ratu Josateki Nawalowalo said the removal of the restriction on kava trade in European countries was a result of a 10-day roundtable...

Following-up on this old post, apparently the WTO can work for the little guy:

Fiji Kava Council chairman, Ratu Josateki Nawalowalo said the removal of the restriction on kava trade in European countries was a result of a 10-day roundtable consultation between Pacific Island ambassadors, European Commission leaders based in Brussels and the German Government Authorities in Berlin.

Kava trade had been restricted in the European countries since 2002.

...

"We also acquired legal advice from European lawyers Frantino Vergano, under our funding facilities by TradeCom, which confirmed our legitimate rights to seek WTO intervention and involvement. Fiji desperately needs to promote kava as an alternative to the sugar industry in EU and will be the answer to our economic plight," he added.

And it seems that this will have a big impact:

Fiji was earning close to $100 million per annum since 1998 prior to the ban while in 2003 IKEC registered a combined claim of 'loss of revenue' of around $US200 million per annum for the Pacific Island producers.

This is certainly good news for Fiji. The linked article provides a bit of explanation, but this could make for a very good case study, if someone wants to do further research, of how a small, developing country can use trade rules to open markets.

Guilty Plea to Information Waives Argument That Defendant Did Not Knowingly and Voluntarily Waive Right to Indictment

Thu, 20 Nov 2008 23:23:33 GMT

United States v. Daughenbaugh, No. 08-30254 (5th Cir. Nov. 19, 2008) (Benavides, Southwick, Haynes) Daughenbaugh agreed to plead guilty to an information charging him with one count of possessing child pornography. "Prior to entering the guilty plea, Daughenbaugh and his counsel signed an 'Affidavit of Understanding of Maximum Penalty and Constitutional Rights,' in which Daughenbaugh

Antitrust, Restriction by Object and Agreed Capacity Reductions: Case C-209/07

Thu, 20 Nov 2008 22:08:38 GMT

The Court of Justice has handed down a neat judgment in Case C-209/07 Competition Authority v. Beef Industry Development Society ("BIDS") and Barry Brothers on what constitutes a restriction of competition "by object" within the meaning o Article 81 §1...

The Court of Justice has handed down a neat judgment in Case C-209/07 Competition Authority v. Beef Industry Development Society ("BIDS") and Barry Brothers on what constitutes a restriction of competition "by object" within the meaning o Article 81 §1 EC.

The story goes something like this. Ireland is a big beef producing country but there was an overcapacity in the slaughterhouses. In 1998 the Irish Government and industry representatives commissioned a market study on that overcapacity. A "Beef Task Force" was then established by the Minister for Agriculture and Food which made a further report in 1999. That report recommended to the industry that it should reduce its overcapacity.

To do just that, certain meat processors formed the Beef Industry Development Society Ltd ("BIDS"). The members of BIDS produce about 93% of the beef sold in Ireland. The object of BIDS is to implement the reductions in the overcapacity of the slaughterhouses (‘the BIDS arrangement’). Its aim was to achieve a reduction of overcapacity of 25% within one year. In particular, the arrangement provided that some of the processors which are members of BIDS (‘goers’) undertake to leave the processing industry, to decommission their processing plants and to respect a two-year non-compete clause (‘exit agreements’). In exchange, goers are to be compensated by BIDS by means of compensation payments to be financed by the members of BIDS which stay in the processing industry (‘stayers’).

The Irish Competition Authority considered the BIDS arrangement to be restrictive of competition and sought orders from the Irish High Court restraining BIDS from implementing the arrangement. The High Court dismissed the claims of the Competition Authority which then appealed to the Irish Supreme Court. Both the High Court and the Supreme Court held that the BIDS arrangements had an effect on trade between member States because most Irish beef is exported. The Supreme Court considered also that the BIDS arrangement had the effect of restricting competition within the meaning of Article 81 (1) EC but was uncertain whether the arrangement had the object of restricting competition. Consequently, it asked the Court of Justice whether such an arrangement had the object of restricting competition within the meaning of Article 81 §1 EC.

The Court of Justice held that such an arrangement did indeed have the object of restricting competition within the meaning of Article 81 §1 EC.

The Court recalled that, to come within the prohibition laid down in Article 81 §1 EC, an agreement must have ‘as [its] object or effect the prevention, restriction or distortion of competition within the common market’. It has been settled caselaw since the judgment in Case 56/65 LTM that the alternative nature of that requirement, indicated by the conjunction ‘or’, leads, first, to the need to consider the precise purpose of the agreement, in the economic context in which it is to be applied. Where, however, an analysis of the clauses of that agreement does not reveal the effect on competition to be sufficiently deleterious, its consequences should then be considered and for it to be caught by the prohibition it is necessary to find that those factors are present which show that competition has in fact been prevented or restricted or distorted to an appreciable extent.

It also recalled that in deciding whether an agreement is prohibited by Article 81 §1 EC, there is no need to take account of its actual effects once it appears that its object is to prevent, restrict or distort competition within the common market (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission, and Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, paragraph 125). That examination must be made in the light of the agreement’s content and economic context (Joined Cases 29/83 and 30/83 Compagnie royale asturienne des mines and Rheinzink v Commission, paragraph 26, and Case C‑551/03 P General Motors v Commission, paragraph 66). The distinction between ‘infringements by object’ and ‘infringements by effect’ arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition.

The Court analysed the BIDS arrangement and found that it was clearly intended to enable several undertakings to implement a common policy of encouraging some of them to withdraw from the market and to reduce the overcapacity which affects their profitability by preventing them from achieving economies of scale.

It found that such an arrangement conflicts patently with the concept inherent in the rules on antitrust in the EC Treaty, according to which each economic operator must determine independently the policy which it intends to adopt on the common market. It recalls that Article 81 §1 EC is intended to prohibit any form of coordination which deliberately substitutes practical cooperation between undertakings for the risks of competition.

[The Eur-Lex website is down, yet again, so we'll add the links later when it is working. Sorry.]

Exotic dancer alleging age discrimination

Thu, 20 Nov 2008 22:02:09 GMT

CBC News is reporting that a woman from Ontario is alleging she was fired from her job as an exotic dancer on the basis of age. She has proceeded to file a complaint with the Ontario Human Rights Tribunal. The woman in question, Ms. Ouwroulis, is 44, and contends that her employer advised her that her time working for the strip club "was up" because the club was "going in a new direction with younger girls."

As is noted by the article, this complaint is a novel one for more than just the fact that it's a complaint involving a less traditional area of employment. Here, the employee alleges she was fired not because she was too old to do the job per se (she's still seemingly capable of dancing and she makes no mention that her employer questioned her abilities to dance), but that because of her age she no longer exuded the appearance or the appeal that the club was wanting its dancers to portray.

If Ms. Ouwroulis can put forward sufficient evidence to show she was fired because of her age, to defend against the claim it will be up to the employer to, in effect, argue that age is a bona fide job requirement. To do that in this case will require the employer to connect appearance and sexual appeal to age in the context of the type of work Ms. Ouwroulis was hired to perform. Not so easy to connect-the dots here for the employer, I don't think.

Remember that an employer can't succeed to defend against a discrimination complaint on the basis of conjecture. While your reaction to reading this news might be -- well of course patrons of strip clubs want to see younger women -- do they? How do age and sexual appeal intersect anyway? And, from whose perspective will the employer argue its case? The owners? The patrons? Which patrons? Will they get into an analysis of Ms. Ouwroulis' take-home pay (tips included!) relative to other younger dancers? Does take-home pay in this industry equate with sexual appeal? What is 'younger' anyway in this context? When do you get set out to pasture? 35? 30? 25?

Leaving aside the type of workplace from which this complaint arises, the context of the complaint is interesting as it, I think, goes to the more general concept of societal views of the sexuality of women. Look at the movie industry, for example, and the contention of female actors that after 40 they tend to get the 'mom' or 'grandma' roles. Or magazine articles that mention how good a woman looks 'at her age', which is usually post-40. Ok, ok, so maybe this case has got my brain a little too engaged. But, hey, you can't blame a gal who is looking 40 in the eye!

If you have any thoughts about this complaint, please leave a comment in the comments section. I read all comments I receive and try to respond to every one as well. It's through discussing the concepts and cases that we all learn!

Scepticism

Thu, 20 Nov 2008 21:58:03 GMT

By coincidence, several of our courts were slow to get started yesterday, so like proper JPs we got ourselves coffees, sat round the big table, and gossipped. Well, grumbled, actually.
"Have you seen the papers?" asked Nigel. "It seems that two serious speeding offences will get you banned in future". Snorts of derision, and a comment of: "Just like now, then" came from across the table. Others chipped in with the fact that (as Any Fule Kno) the Guidelines (remember them?) issued a few months ago suggest (as did their predecessors) that serious speeding should attract six points, and that 2 x 6 = 12, and twelve points equals a totting-up ban. So why are the papers full of it this morning? Of course it's spin, and like most spin it covers up the real agenda. Currently the police only ticket the relatively low-end speeders and send the serious Toads to court. The new plan is to allow FPNs to go up to 6 points, and, if I read aright, for police/CPS 'Prosecution Teams' to issue driving bans without the expense and inconvenience of a court hearing. Wrong, wrong, wrong.
Then Pam chipped in with: "What about the idea of prosecuting men who 'knowingly' use prostitutes who are under the 'control' of a pimp?" "What's the chance of the CPS proving Beyond Reasonable Doubt that Joe Punter knew, or asked, whether Olga or Ludmilla was working on her own account or for nasty Sergei?" We rapidly formed a consensus that very few, if any, convictions would result.
At this point a couple of clerks appeared to say that their cases were at last about to start, and we drifted off to our courtrooms.
What is it coming to when socially-aware, trained and responsible JPs have been driven to such cynicism? There is only so much spin and bullshit that can be directed our way before some of us begin to question what the hell we are doing with our time. In more than two decades I have never seen Bench morale so low - because if we don't feel trusted or respected by the Government we shall not trust or respect it in return.

Citizenship, Grants, Students and Ex-workers: Case C-158/07

Thu, 20 Nov 2008 19:35:02 GMT

Has the Court of Justice halted the inexorable march of rights under the banner of "citizenship" ? Perhaps not. But the recent judgment in Case C-158/07 Jacqueline Förster v. Hoofddirectie van de Informatie Beheer Groep does give the member States...

Has the Court of Justice halted the inexorable march of rights under the banner of "citizenship" ? Perhaps not. But the recent judgment in Case C-158/07 Jacqueline Förster v. Hoofddirectie van de Informatie Beheer Groep does give the member States some latitude to treat citizens of other member States differently from their own.

Here's the story. Jacqueline Förster, a young German woman, went to the Netherlands and enrolled for training as a primary school teacher in 2000. She got a job to help support herself while she studied. She also got a grant from the competent Dutch authority, the IB-Groep, from September 2000. That authority took the view that Ms Förster was a ‘worker’ and, consequently, should be treated in the same way as a student of Dutch nationality as regards maintenance grants. Later, when it checked up, the IB-Groep discovered that Ms Förster had not been gainfully employed between July 2003 and December 2003. As she could no longer be considered to be a worker, the IB-Groep annulled the decision giving her a grant that was paid between July and December 2003 and asked her to repay the amounts paid during that time.

Ms Förster challenged that decision and claimed that she was already sufficiently integrated into Dutch society during the period at issue to be able to claim a maintenance grant as a student under EC law. She relied on the judgment in Case C-209/03 Bidar in which the Court of Justice held that the existence of a certain degree of integration may be deemed established by a finding that a student has resided in the host member State for a certain length of time. But, following that judgment the IB-Groep adopted a policy rule which provided that a student from the EU must have been lawfully resident in the Netherlands for an uninterrupted period of at least five years before claiming a maintenance grant.

The competent Dutch court, wondering whether Ms Förster should be treated like a Dutch national, then referred questions to the Court to ask under what conditions a student from another member State may be entitled to a grant and whether the residence requirement of 5 years is compatible with EC law.

The Court of Justice replied that such a 5 year requirement was indeed compatible.

In the first place, the Court held that Ms. Förster did not come within the ambit of Regulation 1251/70 that entitles a worker who has ceased her employment activity to remain permanently in the territory of a member State after having worked there as an employed person and to continue to be entitled to equality of treatment with nationals, subject to certain conditions: Ms Förster did not, as a matter of fact, meet those conditions.

Then, the Court held that that a residence requirement of 5 years, such as that laid down by the Dutch authorities, does not go beyond what is necessary to attain the objective of ensuring that students from other member States are to a certain degree integrated into the society of the host member State, as required by the judgment in Case C-209/03 Bidar. The Court found that the residence requirement was applied on the basis of clear criteria known in advance (see Case C-138/02 Collins). Consequently, the Court held a student who is a national of one member State and travels to another member State to study there can rely on the first paragraph of Article 12 EC in order to obtain a grant where she has resided for a certain period in the host member State. But Article 12 EC does not preclude the application to nationals of other member States of a requirement of five years’ prior residence even when such a requirement is not imposed on nationals.

"Into the Future" Human Rights Conference

Thu, 20 Nov 2008 19:20:55 GMT

On December 10, 2008, you can celebrate the 60th Anniversary of the UN Declaration of Human Rights, International Human Rights Day and learn all at the same time by attending the "Into the Future Human Rights Conference" being put on...

On December 10, 2008, you can celebrate the 60th Anniversary of the UN Declaration of Human Rights, International Human Rights Day and learn all at the same time by attending the "Into the Future Human Rights Conference" being put on by the Manitoba and Canadian Human Rights Commissions and the Manitoba Association for Rights and Liberties.

Dr. Lloyd Axworthy will be making the keynote address. In the afternoon, three concurrent sessions will be run covering the following topics:

Session 1 - Indigenous Perspectives: Our nations, our environments, our rights

Session 2 - -The Technology Gap - the impact of technology and the changing environment on people with disabilities

Session 3 – Social and Economic Rights- a woman’s burden

To learn more about these sessions, read the Conference Agenda.

To register, go to the Manitoba Human Rights Commission's website. Remember that early bird registration ends November 28.

The Meaning of the CRTC Decision

mgeist@uottawa.ca (Michael Geist) — Thu, 20 Nov 2008 18:17:02 GMT

Mirko Bibic, Chief Regulatory Officer, Bell:

"With this decision, the Commission has rightly confirmed that network operators are in the best position to determine how to operate their networks effectively and efficiently, to allow fair and proportionate use of the Internet by all users."

Len Katz, Vice-Chair, CRTC:

"Someone told me Bell put out a press release that said the commission upheld its position that network management practices are a fundamental right of theirs. That's not what we said at all."

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