law

האם צריכה יהדות התפוצות להביע את דעתה בענייניה של ישראל

(Beny Shlevich photo)

הצעת חוק החדשה של חברת הכנסת תהילה פרידמן ממפלגת כחול לבן, מעוררת עניין רב בעולם היהודי. לדברי אחד מהבכירים בקהילת היהודים בארצות הברית, דיוויד באטלר, הצעת חוק זו מעלה על הפרק את אחד האירועים המשמעותיים ביחסי ישראל והתפוצות מזה שנים רבות.

השאלה שהחוזרת על עצמה אין סוף פעמים, נדונה לעיתים קרובות במאמרי דעות בעיתונות, בנאומים ובכנסים יהודיים שונים, אך היא מעולם לא זכתה לתשובה חד משמעית. כעת מוצעת בכנסת חקיקה חדשה שתיתן למנהיגי יהדות התפוצות סוף סוף תפקיד רשמי בענייניה של ישראל, ואולי אף תבשר על עידן חדש ביחסי ישראל והתפוצות.

מתוך כלל היהודים בעולם שמספרם מוערך בכחמישה עשר מיליון, קרוב לשבעה מיליון גרים בישראל, לפי נתוני ממשלת ישראל. על פי הערכות שונות כשמונת המיליונים הנותרים חיים ברובם בשש המדינות הבאות: ארה”ב כשישה מיליון, צרפת כחצי מיליון, קנדה כארבע מאות אלף, בריטניה כשלוש מאות אלף, ארגנטינה כמאתיים אלף ורוסיה כמאתיים אלף.

את הצעת החוק, שזכתה לתמיכת משרד התפוצות, מקדמת כאמור ח”כ תהילה פרידמן. החוק המוצע יחייב את ממשלת ישראל להיוועץ במנהיגי יהדות העולם בעניינים שייחשבו בעיניה כמכריעים, ונוגעים גם לכשמונה מיליון היהודים שחיים מחוץ לישראל.

באטלר אומר הצעת החוק החדשה “עשויה להיות אחד האירועים המשמעותיים ביותר ביחסי ישראל והתפוצות מזה עשרות שנים”. באטלר אגב משמש יו”ר ועדת ישראל וחו”ל של ארגון הגג של הפדרציות היהודיות בצפון אמריקה (שמאגד מאה ארבעים ושש פדרציות יהודיות ועוד שלוש מאות קהילות עצמאיות).

פדרציות אלו שולחות במשותף לישראל מדי שנה מאות מיליוני דולרים בדמות מענקים למלכ”רים שונים, שפועלים למען ישראלים מכל מגזרי בחברה. ביניהם שני השותפים העיקריים של הפדרציות מחוץ לארה”ב: הסוכנות היהדות לישראל וארגון הג’וינט.

בסוף חודש אוקטובר קיימו הארגונים את הכנס השנתי שלהם (בפורמט מקוון) ובו עלתה לדיון השאלה המרכזית: באיזו מידה צריכה להיות ליהודי העולם אמירה בענייני הפנים של ישראל. שאלה זו שימשה כזרז להצעת החוק הממשלתית של השרה לענייני התפוצות עומר ינקליבץ’ (השרה החרדית הראשונה בישראל).

אריק פינגהרט, לשעבר חבר קונגרס יהודי מאוהיו (עומד כיום בראש רשת הפדרציות היהודיות) מאמין שהישראלים וממשלת ישראל צריכים לרצות לשמוע גם מהיהודים בעולם, וללמוד ולהבין את נקודות המבט של היהודים בעולם. “איננו רוצים לנסות לומר לממשלת ישראל מה לעשות, אבל אנחנו כן רוצים שהם ישמעו את מה שיש לנו לומר בעניינים המשפיעים על הקהילה שלנו”, הוא מוסיף.

לדברי השרה ינלקביץ’: “עלינו להבין לעומק את האינטרסים והצרכים של כשמונה מיליון האחים והאחיות של ישראל הגרים מחוץ לגבולותינו. זה נכון במיוחד כאשר מדינת ישראל מקבלת החלטות המשפיעות ישירות על קהילות יהודיות מחוץ לישראל. אם למדתי משהו בתפקידי כשרה בשמונת החודשים האחרונים, זה שליהדות העולם יש קול. הוא עשיר, הוא מגוון, הוא חזק, אי אפשר ואין רשות להתעלם ממנו”.

ישנן כמה סוגיות שבאופן קבוע נוגעות בנקודות רגישות במערכת היחסים המורכבת בין שתי הקהילות היהודיות הגדולות בעולם, ישראל וארה”ב. רוב היהודים האמריקנים מזדהים כרפורמים או כקונסרבטיבים, אך היחס לשני הזרמים הלא אורתודוקסיים הללו הוא יחס של בוז או עוינות של ממש, מצד רבים בישראל, בכלל זה הרבנות הראשית. גיורים שעורכים רבנים רפורמים או קונסרבטיבים אינם מוכרים בישראל, ויהודים אמריקנים שרוצים להתפלל בכותל המערבי במניינים שיוויוניים, בעירוב נשים וגברים או בהובלת נשים, נחסמים באופן קבוע ואינם מורשים לעשות זאת.

“במשך זמן רב מדי הייתה ישראל המקום היחיד עלי אדמות שבו לא כל היהודים מקבלים יחס שווה. זה משהו שישראל צריכה לתקן ויפה שעה אחת קודם, ולא רק בגלל יהודי התפוצות”, אומרת חברת הכנסת מרב מיכאלי ממפלגת העבודה. “יש לנו גם כאן בישראל יהודים רפורמים וקונסרבטיבים שעדיין אינם נהנים משיוויון לא במימון, לא בזכויות ולא בהכרה על-ידי המדינה”, היא מוסיפה.

רבים מחברי הכנסת התומכים בחקיקה החדשה התנסו במגורים בתפוצות או בעבודה עם יהודי התפוצות. מיכאלי עבדה בעבר כמדריכה במרכז קהילתי יהודי במערב פאלם ביץ’, פלורידה. פרידמן, עורכת דין דתייה מירושלים, ייצגה בעבר את הפדרציה היהודית הגדולה ביותר בניו ג’רזי (הידועה בשם גרֵייטר מֶטרוֹ-ווֶסט). הוריה של ינקלביץ’ עלו לישראל מברית המועצות לשעבר.

חברת כנסת נוספת שתומכת בחקיקה היא מיכל קוֹטלר-ווּנש ממפלגת כחול לבן, שגדלה במונטריאול ולאחר מכן שבה לישראל. אביה, ארווין קוטלר, שימש בעבר שר המשפטים בקנדה. לדבריה: “השאלה אינה אם אלא איך לערב את יהודי התפוצות. אנחנו חיים ברגע היסטורי, שבו יש לנו הזדמנות כבירה לעצב מחדש ולשנות את תבנית המחשבה ביחסי ישראל והתפוצות, למה שהיא שהייתה אמורה להיות”.

שמואל רוזנר, שמשמש עיתונאי ופרשן של הניו יורק טיימס, אומר כי הוא אינו חושב שהצעד הזה יעבור בכנסת במיוחד עכשיו, כשישראל ממוקדת בקורונה, ודעת ראש הממשלה בנימין נתניהו מוסחת בשל ההפגנות נגד עמידתו בראשות הממשלה. הוא מוסיף: “הקמת מנגנון אפקטיבי שמייצג נאמנה את האינטרסים של יהודי התפוצות יהיה בלתי אפשרי, והישראלים אינם רוצים בחוק שכזה. אני חושב שהתייעצות בין ישראל לבין יהדות העולם צריכה להיעשות באופן קבוע ורציני, אבל לא צריכה להיות רשמית בשום צורה. אני תומך לחלוטין בדיאלוג, אבל מתנגד לכל דיאלוג שתלוי במנגנונים רשמיים ובחוקים שתכליתם היא לכפות על ממשלת ישראל התייעצות עם גורמים מבחוץ”.

פרידמן מסכימה כי נמוכים הסיכויים שהצעת החוק שלה שפרטיה מעורפלים בשלב זה, לדרוש חובת התייעצות עם יהדות התפוצות בהחלטות שיש להן השפעות ישירות על יהדות העולם – תהפוך לחוק. זאת, במיוחד בנסיבות הנוכחיות. אך היא שואבת עידוד מכך שמשרד התפוצות הטיל את כובד משקלו על ההצעה. “זה פשוט הופך את כל העניין להרבה יותר רציני”, היא הוסיפה.

שירה רודרמן, מנכ”לית קרן משפחת רדומן, גוף פילנתרופי עם משרדים בישראל ובבוסטון, שמבקש לעזור לגשר על הפער שבין ישראל לתפוצות, אומרת שבדרך כלל המחוקקים הישראלים שמים לב לקהילות היהודיות מעבר לים, רק כאשר יש משבר בבית או בחו”ל. רודמן: “זה צריך להשתנות. במשך השנים, שמענו הרבה הערות נגד יהודים רפורמים וקונסרבטיבים, שהדעות שלהם אינן חשובות, למעט כאשר הדברים אמורים בתרומות ובשתדלנות למען ישראל. לפני למעלה משבעים שנה, הייתה לעם היהודי בכל מקום שבו היה – מטרה משותפת: להקים מולדת יהודית. היום, אין לנו מטרה משותפת או ייעוד משותף. איך אפשר לבנות עתיד ביחד אם אין לך מטרה משותפת”.

פרידמן שממשיכה בקידום החקיקה, אישרה שקיימת התנגדות להצעת החוק, אבל היא מאמינה שבכל זאת מדובר ברעיון חשוב. פרידמן: “אני מקבלת לחץ נגדי הן מהשמאל והן מהימין. ברור לכולנו שישנן סוגיות שרק אזרחי ישראל יכולים להחליט בהן, כמו ביטחון וכלכלה. אבל כשמדובר בסוגיות שיש להן השפעה ישירה על העם היהודי כולו, כמו שינוי חוק השבות או איך אמור להיראות הכותל, או שאלות לגבי גיור – גם יהדות העולם צריכה לקבל קול”.

Making a will during COVID

For hundreds of years, the basic rules for making a valid will have been the same: the person making the will has to sign it in the company of witnesses, and the witnesses have to sign, too. How can that requirement stand when we’re supposed to stay apart? Is it OK to sign and witness a will with everyone two metres apart from one another and wearing masks and even gloves?

Signing with COVID-19 precautions like distancing and wearing safety gear is legally valid, but not always practical. You’re passing around a paper document, and possibly sharing a pen. As we move into the winter months, it becomes less likely that you’ll all gather outside to sign. Signing indoors, despite social distancing and personal protection equipment, is still considered a greater risk than staying home.

Many of us have become far more familiar with videoconferencing technologies this year than we ever expected to be. How many of us had a Zoom seder or a Skype Rosh Hashanah dinner? Why can’t we update a centuries-old practice for the 21st century, especially given the COVID-19 crisis? We can.

The British Columbia government, as part of the emergency measures brought in this year, made changes to the rules for executing wills to accommodate pandemic precautions, and has also made those changes permanent. The Wills, Estates and Succession Act, which governs how we make wills, was amended to include two new sections on something called “electronic presence.”

The basic rules are still the same – the will has to be signed by the person making the will and by two witnesses, all witnessing one another more or less simultaneously, but they can sign separate paper copies – to be put together and treated as one original document – as long as they are in each others’ “electronic presence.” In other words, it should be the “witnessing a will” version of that Zoom seder.

Like everything with a will, there are technical details and you should always get professional guidance, but it is reassuring that you can remain safe, while attending to your critical planning needs.

Jeremy Costin is a business and estates lawyer practising in Vancouver. He sits on the board of directors and the governance committee of the Vancouver Holocaust Education Centre, and is a frequent guest instructor at the Law Society of British Columbia.

(Disclaimer: This article should not be construed as legal advice. Only your lawyer can give you proper advice specific to your needs.)

Fighting for women’s equality

Linda Silver Dranoff kicked off the four-part National Council of Jewish Women of Canada Women and Justice speaker series on Sept. 23. (screenshot)

National Council of Jewish Women of Canada started its four-part Women and Justice Speaker Series on Sept. 23 with retired family law lawyer Linda Silver Dranoff, who lives in Toronto.

The online setting allowed NCJWC members from across the country to be involved. The talk was opened by national president Debbie Wasserman, in Toronto, and closed by co-vice-president Debby Altow, in Vancouver; the question-and-answer period was handled by a committee chair, Bianca Krimberg, in Calgary.

Silver Dranoff’s talk was sobering, explaining how women in Canada have been defined by their subordinate role in the family, in relation to a man. She gave examples of laws that have reinforced this status, but also offered possible solutions, as legal reform has been an important part of her career. Among the books she has written is a memoir, called Fairly Equal: Lawyering the Feminist Revolution.

“Throughout human history, women were unprotected and vulnerable. Husbands controlled the purse strings, all property, any pension and the children,” she said. “A woman did not even own her own clothing, which was called ‘the wife’s paraphernalia.’ Women and children were property, not people. Once a woman was married, she was stuck, even if her husband beat or starved her. What we call domestic violence was considered, until very recently in human history, a private family matter that the state and the community did not get involved in.

“There was no divorce law in Canada until 1968,” she continued. “If a woman was guilty of marital misconduct, such as adultery, she could lose her right to have custody of her children and often even access to visit with them.”

Silver Dranoff became a lawyer in family law in 1974. At the time, she witnessed women staying in abusive marriages because they had little choice – if they left, they could become destitute and lose their children, too. “Marital misconduct ended any right to financial support, even if it happened after separation and divorce,” she said, explaining that settlement agreements often included a dum casta clause, a “while chaste” clause.

If a woman left her abusive husband, she said, anyone helping or harbouring her could be charged as a criminal. “This was an offence in our criminal law until the 1970s – that’s how recently it was. The law permitted a man to disinherit his wife and leave her destitute, no matter how long they’d been married and even if she was the model of a perfect wife.

“The husband controlled the wife’s reproduction. Contraception and abortion were criminal offences. A husband and wife were considered one person in law – the husband. This concept of the legal unity of husband and wife is what allowed a man to control his wife in every respect.” Until 1983, a husband could legally rape his wife – “marriage was considered consent to conjugal relations,” explained Silver Dranoff, who stressed that, of course, many men didn’t take advantage of their power – “but those who did could do so with impunity” and with legal sanction.

In addition to these restrictions, married women were discouraged from working outside the home. “In 1941,” said Silver Dranoff, “fewer than four percent of married women were employed. It wasn’t until 1955 that married women were eligible to be employed in the federal civil service. In any event, there was almost no publicly supported childcare – this actively discouraged women from employment. Even if women worked, usually out of necessity, there were no laws protecting them from discrimination in employment.” This meant that women could legally be paid less, disregarded for promotion consideration and fired if a man needed a job. “There was no law against sexual harassment in the workplace; it didn’t even exist until the early 1980s in law.”

In the public arena, said Silver Dranoff, “women were invisible.” While most women have had the right to vote since 1918 – a right won by the efforts of the first-wave women’s movement – government policy usually overlooked issues of concern to women. “Only five women were elected to Parliament before 1950,” she said. “It wasn’t until 1957 that the first woman ever was appointed as a federal cabinet minister. And a woman lawyer was a rarity – in 1951, there were 197 women lawyers in all of Canada out of a total of 9,000.”

This was the world in which Silver Dranoff grew up, and it energized and impelled her to action, as it did others. “I believe the most significant transformation allowing women a less dependent role in society came about when women could control our reproductive powers,” she said. “The birth control pill was developed in 1961. While contraception and abortion were still criminal offences, the pill gradually became publicly available in the 1960s, and that is when the second-wave women’s movement began.”

Women’s groups proliferated in the 1970s and 1980s. “The National Action Committee on the Status of Women comprised most of the major women’s organizations of the day, totalling, at its height, 700 women’s organizations that all gathered together to promote the rights of women with one voice.”

Silver Dranoff went to law school in 1969. She was a single parent with a 2-year-old and had been out of school for eight years. “Other women were also seeing a life outside the family as a possibility,” she said. “In my law school class, there were 14 women out of 300; we were five percent of the class. Had I attended eight years earlier, when I graduated from history, I would have been the only woman in a law school class in Toronto.”

With more women lawyers, there was more pressure for change and Silver Dranoff spoke about some of the advances that have been made in family law reform, Charter equality rights, abortion, violence against women, childcare, pay equity, and representation and power.

When Silver Dranoff came to the bar in 1974, women had no right to share property accumulated during a marriage, and spousal and child support amounts were “paltry and difficult to enforce.” By the 1980s across Canada, improvements had been made both in multiple laws and in their enforcement. “These changes enabled women to leave bad marriages and live independently,” she said.

However, there is more to be done. Husbands and their lawyers still “use the legal system and its processes and delays as a club to intimidate women.” As well, she added, “It is often too expensive to seek the rights which the law gives, and legal aid is severely underfunded.” Another problem is that mediation and arbitration are replacing the courts in some cases and, “as a result, women may be encouraged to make a deal that doesn’t give them the benefit of the laws we fought long and hard for.”

When the Canadian Constitution was repatriated from Great Britain in 1982, a new Charter of Rights and Freedoms was enacted. Women’s groups lobbied the government of the day, led by then-prime minister Pierre Trudeau, “to include constitutionally entrenched equality rights in the Charter – by the way, a right that American women still don’t have. Our women lawyers provided the wording to protect us, using the lessons taught by the ineffective Bill of Rights passed in the 1950s.”

One of those lessons was the need to make sure the rights were actually protected. “We had to lobby, we had to organize, we had to participate in court cases that would affect our equality rights. So, we founded the Women’s Legal and Educational Action Fund, known as LEAF, in 1985, when equality rights came into effect, to try and ensure that court interpretations of the Charter did not erode, but enhanced and ensured women’s equality rights.”

In the late 1960s, Trudeau, as justice minister under then-prime minister Lester B. Pearson, brought in amendments to the Criminal Code that permitted abortion under defined conditions. The amendments did not legalize abortion, but said the prohibition would not operate if a medical committee deemed a pregnant woman’s life to be in danger if she carried to term. This law did not work, said Silver Dranoff. Among other things, there was inconsistency among hospital abortion committees in rulings and there were no guidelines on what constituted endangerment.

“Dr. Henry Morgentaler became women’s champion,” she said. “He opened a clinic in Montreal and women traveled there from across Canada to be assured of getting and having a safe abortion.”

Morgentaler challenged the medical committee law, she said, and his goal was to get abortion removed as an offence under the Criminal Code; he also challenged provincial laws. “The main challenge was decided in 1988 by the Supreme Court of Canada,” said Silver Dranoff, “which agreed with defence counsel’s constitutional argument that the abortion provisions of the Criminal Code breached the rights of Section 7 of the Charter to life, liberty and security of the person and, therefore, was unconstitutional.”

There is no longer any federal law preventing or criminalizing abortion, or requiring anyone’s consent to the procedure other than that of the pregnant woman. There have been challenges to the change, though, including the federal government under then-prime minister Brian Mulroney, which tried twice – unsuccessfully – to form an anti-abortion law that wouldn’t violate the Charter.

“This shows how important it is to keep vigilant and organized and focused,” said Silver Dranoff. “There’s no such thing as a permanent victory, only a continuing struggle.”

A case in point is the progress that has been made with respect to dealing with violence against women. The courts used to accept the argument that, if a woman had ever had sex before with anyone, she probably consented to the approach by the accused. Victims can no longer be cross-examined on their previous sexual experience, unless the trial judge determines there is some compelling reason to allow it, said Silver Dranoff. However, “victims are still being mistreated by the courts,” she said. “As a result, many women are reluctant to complain.”

In addition to a need for more education of lawyers, police and others in the system before attitudes will change, Silver Dranoff spoke of the need for prevention, offering the example of proactive imprisonment, which is practised in some communities in the United States. Whereas a bail hearing assesses whether an accused is likely to flee before trial, this process assesses how likely an accused is to murder their accuser. If the risk of murder is high, the accused would be imprisoned until their trial and the victim (and their children) would be able to stay at home instead of having to seek shelter and protection, for example.

“I think it’s a plan that’s worthy of consideration in Canada,” said Silver Dranoff. “We also need gun control. In the hands of men who are violent against women, guns are dangerous. And the only way to control violent men using guns is to control guns. Canadian statistics show that access to firearms by an intimate partner increases the likelihood of murder by 500%.”

Childcare is another integral issue, she said. “I personally think that women will never be able to take their full place in our workforce unless we have proper health- and childcare. We need government-paid, government-subsidized childcare centres, regulated places for our children to go and be cared for while women are employed in the paid labour force.”

She said that, 50 years ago, in 1970, the importance of childcare was recognized in the Royal Commission on the Status of Women, “which called for a national childcare plan. The royal commission identified the care of children as the responsibility to be shared by mothers, fathers and society, without which, women cannot be accorded true equality. Just as true today as it was in 1970.”

She pointed to other instances in which a national childcare program had been recommended or dismissed by a federal government. Most recently, on Sept. 23, Prime Minister Justin Trudeau’s government “announced plans for a significant long-term investment in a national childcare and early-learning system, including before- and after-school care, and built on the [publicly funded] Quebec model.”

Silver Dranoff warned that government announcements, and even the making of laws, do not necessarily translate into changes. In Ontario, for example, there have been equal pay laws since 1951, she said, while the Pay Equity Act, which applied to the federal public service, didn’t come until 1984. Changes to the various laws have occurred as a result of complaints from workers, she said, and different governments and employers have either progressed or hindered pay equity.

“Statistics tell the story, too,” she said. “In 1965, women earned, on average, 41% of men’s pay…. Today, Ontario women earn, on average, 70 cents for every dollar a man earns.” While an improvement, it took more than 50 years and it’s not good enough, she said. “These statistics repeat themselves all over the world. Women are still paid less than men in every country in the world, according to research by the World Economic Forum.” And the pay gap is even larger for Indigenous, racialized and immigrant women, she said.

Potential solutions include a law requiring pay transparency, wherein a wage is assigned to a particular job, not the gender of the person filling it, and requiring companies to get equal pay certification from the government or be fined. The latter policy has been implemented in Iceland, she said.

After a few more examples of ways to improve pay equity, Silver Dranoff moved on to her final topic – representation and power. She noted that, in 2013, there were six female premiers, now there is only one (Caroline Cochrane, in the Northwest Territories).

“We need more women in positions of power and we’re having great difficulty in achieving it,” said Silver Dranoff. One deterrent is that women in politics receive significantly more abuse and nastiness than male politicians. Much of this abuse is online in social media and even anonymous; two factors contributing to the fact that few perpetrators are charged or convicted.

She said, “The law could be strengthened in this way: make social media platforms legally responsible for the content they post, just as newspapers have a responsibility to ensure that the content they print is not defamatory.”

She noted there are no provisions in the Criminal Code for online bullying, online criminal harassment, online misogyny. “The Criminal Code only deals with in-person offences,” she said. Of course, to make these types of new laws work, she added, anonymity on the internet must be curtailed or eliminated.

To sustain the advances made by the women’s movement, she said, “Feminists must run for office and be elected. Parties must nominate feminists in electable ridings.”

In Silver Dranoff’s use of the term, feminists can be any gender, just as patriarchs can be any gender. Not every woman, she said, will stand up for the interests of women.

In addition to electoral reform – she believes that proportional representation of the mixed member proportional type is the best bet, “both for society as a whole and for women in particular because it requires consensus decision-making” – Silver Dranoff would like to see changes made in the corporate world, as well. She sees a need for things like mandatory quotas for women on boards, to ensure equal representation. “Voluntary doesn’t work,” she said.

Canada also needs a national women’s organization, she said, “like we had in the early days of the women’s movement. The National Action Committee on the Status of Women represented all of us…. We need that national voice to ensure that women’s issues are monitored and our interests are heard.”

Such an organization should not be dependent on government funding, she said, “which can be, and has been, withdrawn due to the ideology of the day. And, in fact, that’s what happened to NAC in the end. The National Action Committee was relying on government funding and an unsympathetic government removed it.”

Women cannot just accept the status quo, she said, or “that makes us complicit.”

She concluded, “My message to you all is carpe diem, seize the day. There is work to be done. It is, without a doubt, long past time for women to achieve equality and justice.”

***

Note: This article has been amended to make clear that it was married women who weren’t permitted to work in the federal public sector until 1955.

Do we care about being fair?

In its decision on Uber Technologies Inc. v. David Heller, the Supreme Court of Canada determined that the freedom of contract is not so absolute in its technical application as to undermine its purpose of allowing people to craft their own destinies. (photo from wikipedia)

Does fairness play a role in how we interpret and apply law? After all, doesn’t a person have the right to make bad decisions?

The Torah gives us the written law, similar to legislation, and the Talmud gives us the oral law and commentary, similar to the doctrines and jurisprudence of common law.

So, are we to interpret and apply law strictly, even if it seems unjust? Is there authority to temper the interpretation of law based on the circumstances? The Talmud tells us, yes. In June, the Supreme Court of Canada agreed.

Every businessperson knows that it’s a good idea to get an agreement in writing. We use written agreements to make a record of what the parties have agreed is their shared vision of their business relationship. Part of that shared vision might include agreeing that certain rights ordinarily afforded by the law of the land won’t apply to this relationship. The right to give up a right is central to the freedom of contract.

The freedom of contract is based on the idea that a person knows what’s best for them and wouldn’t agree to something if the bargain weren’t to their liking. The law doesn’t protect you from your own bad decisions, but it is supposed to protect you from bad decisions that you didn’t make freely.

In June of this year, the Supreme Court of Canada decided the case of Uber Technologies Inc. v. David Heller. Heller was an Uber food delivery driver. As such, he signed a standard agreement with Uber – the kind of agreement that is a “take it or leave it” proposition. Very few people read such contracts and, even if they do take the time to read and understand them, they don’t have the opportunity to create the “shared vision” that the freedom of contract is supposed to protect.

One of the terms of the Uber contract was that any dispute would be dealt with through a mediation and arbitration process in the Netherlands, rather than through the court system in Canada. Doing so would require up-front fees of $14,500 US, not including the cost of lawyers and travel. Heller’s annual earnings from Uber are between $20,000 and $30,000 Cdn. In other words, it would cost at least half of his annual earnings just to file his dispute, let alone pursue it.

The Supreme Court of Canada found in Heller’s favour.

If this had been a freely negotiated contract, Heller would have made a bad decision, but it would have been his decision to make and thus enforceable. However, it was clear to the court that Uber put this clause into the contract to make sure their drivers simply could not bring any dispute against them.

The court could have said that, according to the strict letter of the law, Heller agreed to the contract and is, therefore, bound by it. It doesn’t matter if you now find unfair a contract that you freely agreed to.

Instead, the court said the law in its strictest form is not always applicable, and we must determine whether it is inhumane to apply it strictly or whether circumstances demand we temper it. The court found that, rather than providing an alternative means to justice (i.e. arbitration), Uber imposed an unreasonable barrier to justice; they found a way to make sure that their drivers could not access justice no matter the merit of their complaint.

Many of us are familiar with the first three verses of parshat Shoftim in Devarim (Deuteronomy 16:18-16:20). First, a system of judges is established. Second, the judges are commanded to judge fairly on the merits of the cases. The third verse contains one of the most well-known phrases in the Torah: “Justice, justice shall you pursue.”

Why is the third verse there, and why does it use the word “justice” twice? The second verse has commanded the judges to follow the law without prejudice. Why then tell us to pursue justice? Isn’t that implicit in the establishment of a rule-of-law justice system? And what is “justice, justice” as opposed to “justice”?

In Chapter 2 of tractate Avot in the Mishnah, we are told, “warm thyself by the fire of the sages, but beware of their glowing coals, lest thou be burnt, for their bite is the bite of a fox, and their sting is the sting of a scorpion, and their hiss is the hiss of a serpent, and all their utterances are like coals of fire.”

At the distance where coals keep you warm, you can learn. At this distance, you can also see the coals in the context of providing warmth. If you are close enough that they can bite, sting and hiss, you lose sight of their purpose (warmth) and will be burnt. This applies to law.

Chapter 1 of Avot provides three interpretations of law’s purpose in the olam, world – olam also means the universe and everything in it.

Verse 2 of Chapter 1 says that the world stands on Torah (law), work (the practice of law) and kindness.

Verse 12 directs us to love peace, to pursue peace and to love all creatures bringing them closer to the Torah (law).

Verse 18 tells us that the world stands on justice, truth and peace.

The inclusion of kindness and peace alongside law tells us not to get so close to the coals that we forget their purpose is warmth.

“Justice, justice” is not only law, but law with purpose. Law without purpose may wear a badge of justice, but it is not truly just. Law used for the purpose of subverting justice is not just.

The court determined, in the Uber decision, that the freedom of contract is not so absolute in its technical application as to undermine its purpose of allowing people to craft their own destinies. In this case, Uber’s contract precisely contradicted that purpose: Uber imposed a contract that expressly denied Heller the right to craft his own destiny without his freely given consent.

New MK has Canadian roots

Both MK Michal Cotler-Wunsh, left, and her political aide, Becca Wertman, have Canadian roots. (photo from Becca Wertman)

A new, dynamic force has hit the Knesset, with a political aide just as passionate, and both are rooted in Canada.

Michal Cotler-Wunsh, who once held Canadian citizenship, became a Member of the Knesset for the Blue and White Party this past June. She is among those who have endorsed a proposed bill that, if passed, would change the requirement that Knesset members who hold citizenship in another country must give up that citizenship.

Recently sworn in, Cotler-Wunsh heads a staff of four – a political aide, a parliamentary aide, a spokesperson and an aide who works with her on her portfolio as chair of the Drug and Alcohol Use Committee. In a recent interview, she told the Independent that the issues that concern her are “unity, mamlachliut (often translated statesmanship) and responsibility…. You can’t politicize or personalize issues,” she stressed. Two other issues about which she is passionate are “the ability to combat antisemitism and a commitment to olim [immigrants] and prospective olim.”

Cotler-Wunsh also emphasized her commitment to Israel as a Jewish and democratic state. As a lawyer and international law expert, she added that the international community and Israel must always uphold international law and not allow terror groups to exist in a culture of impunity. She specifically highlighted the importance of this in the context of Hamas not returning the four Israelis currently being held captive in Gaza, in a six-year standing violation of international law.

Jerusalem-born, Cotler-Wunsh spent her first seven years in Israel. When her mother, Ariela (née Ze’evi), married Canadian Irwin Cotler, the family moved to Montreal, where her three siblings were born. Most JI readers will be familiar with Cotler-Wunsh’s father, a former minister of justice of Canada, an international human rights lawyer, emeritus professor of law at McGill University, and founder and chair of the Raoul Wallenberg Centre for Human Rights, among other things.

Cotler-Wunsh returned to Israel for a one-year program after high school and stayed to serve in the Israel Defence Forces as a lone soldier. She then received her law degree from the Hebrew University and did her internship.

In 2000, she and her husband returned to Canada with their son but returned to Israel 10 years later, by which time they had three more children. In 2010, she became associated with the Interdisciplinary Centre in Herzliya and was a research fellow at the International Institute for Counter-Terrorism.

Cotler-Wunsh’s political aide is Vancouver-born and -raised Becca Wertman. The two met at a conference of nongovernmental organizations. “I read Becca, I heard her voice in what she writes,” said Cotler-Wunsh.

Wertman, who is the daughter of Charles and Carla Wertman of Vancouver, has a bachelor degree from the University of Southern California in international relations and a master’s from Columbia University in political science. She was managing editor and responsible for the Canada portfolio at the Jerusalem-based research institute NGO Monitor, authoring articles for a wide variety of publications.

“My messages are very nuanced; it was important to find somebody that can make my nuanced messages accessible to the public and be able to represent me,” explained Cotler-Wunsh. “Having read some of what Becca published, I saw that the values that drive me also drive Becca as well, particularly in the areas of human rights, international law, Zionism and democracy.”

Wertman manages Cotler-Wunsh’s schedule, handles all things that come in English, including media and social media, and reaches out to NGOs that fight antisemitism or are concerned with olim; she also assists Cotler-Wunsh in her foreign endeavours. Like her boss, she is passionate about issues concerning olim chadashim (new immigrants) and working with Diaspora communities.

Wertman made aliyah in 2016 and went to an ulpan to learn Hebrew; she is engaged to an oleh from Chicago. She sees her role as a perfect fit because of the values she shares with Cotler-Wunsh and their shared Canadian backgrounds. In addition, she admires Cotler-Wunsh’s father.

“As a Canadian who is interested in human rights, Prof. Irwin Cotler has been someone I looked up to for many years,” said Wertman.

In June, when Cotler-Wunsh received word that she would be a member of the Knesset, she reached out to Wertman and offered her the position.

“I’m 100% dedicated to MK Michal Cutler-Wunsh, to help her accomplish what she wants to accomplish,” said Wertman. “I fully believe in her goals. Her issues are those I care about. I feel so lucky to work for a member of the Knesset who is furthering issues that I so deeply believe in.” She added, “her background in human rights and international law, these are unique and important skills, experiences and values that can and will add to the Knesset.”

Sybil Kaplan is a journalist, lecturer, book reviewer and food writer in Jerusalem. She created and leads the weekly English-language Shuk Walks in Machane Yehuda, she has compiled and edited nine kosher cookbooks, and is the author of Witness to History: Ten Years as a Woman Journalist in Israel.

Real-life learning

Clockwise from top left: Prof. Daphna Lewinsohn-Zamir, Prof. Guy Davidov, Ohad Amar and Vardit Dameri Madar of Hebrew University’s Clinical Legal Education Centre. (photos from cfhu.org)

Five representatives of Hebrew University’s Clinical Legal Education Centre (CLEC) took part in an online discussion about the legal aid the organization offers to disadvantaged individuals and groups.

“It is one of the jewels in our crown. CLEC has taught our students how social responsibility is an important part of the legal profession,” said Daphna Lewinsohn-Zamir, dean of HU’s faculty of law. “And it continues to do exemplary work during the coronavirus pandemic.”

Besides offering professional legal assistance to underprivileged people in Israel, particularly in the Jerusalem area, the centre provides students with hands-on experience. Each clinic, which is comprised of 16 students and includes six hours of field work each week, is overseen by an attorney and an academic advisor.

“The main goal is to demonstrate to students the difference between law in the books and law in action,” said Prof. Guy Davidov, CLEC’s academic director. “It is essential in showing how the law works in real life. We don’t want to be detached from the community in our ivory towers.”

Another key objective of the centre, Davidov said, is to present the potential (and limitations) of the law as a tool for social change, which also is better understood in practice and engagement.

To illustrate the scope of the centre, Vardit Dameri Madar, CLEC’s executive director, told the assembled Zoom audience the story of Hanna, a 32-year-old mother of six children, including one who has mental challenges. Hanna lives in severe poverty and is divorced after having suffered years of physical and mental abuse. She survives on minimum income benefits.

Just as the coronavirus struck, Hanna had her benefits stopped, said Dameri Madar. In spite of the pandemic forcing people to stay in isolation, the country’s housing department demanded that Hanna come to its offices in person to fill out the necessary documents to receive her benefits.

“Unlike a TV show such as LA Law, problems do not get resolved in the time it takes to watch an episode,” Dameri Madar explained. “In real life, it takes a long time to get a response from the housing department.”

After sending letters to the department and raising the issue in the media of Hanna’s possible eviction, a precarious circumstance shared by thousands of Israelis as the virus started, CLEC was able to make a difference – the housing department relented and allowed people to fill in their applications online.

CLEC handles 600 cases per year. The centre aims to address policy changes that affect broader populations; it initiates 35 to 40 policy change projects a year through tests cases, position papers, shadow reports, draft legislation and alternative models. CLEC also organizes about 90 lectures per year for the general population, as well as for specific groups, such as youth, single mothers and social workers.

This coming year, CLEC will run eight clinics, on the topics of at-risk youth, international human rights, marginalized communities, disability rights, criminal justice, the wrongfully accused, multiculturalism and women’s economic empowerment.

CLEC, too, has formed a Corona Crisis Program that manages existing cases related to poverty with responses in “real time”; provides Social Justice Operations Rooms on Facebook, with legal aid available in Hebrew and Arabic; and promotes policy changes stemming from the Facebook room and clinical activities.

“We decided that Facebook was a good tool to help answer people’s questions at a time when the rules were in flux,” said Ohad Amar, the lecturer at CLEC who started the Facebook groups.

From the Facebook groups, the public has easy access to specialized aid from attorneys, students and volunteers. To date, its 60 volunteers have helped more than 1,500 people.

Ariel Elkayam, a second-year law student, said “this is the best thing that happened to me with my studying here. I am so lucky to get to do this work. With the centre, you do teamwork. It really gives you a sense of belonging.”

Elkayam’s recent work with CLEC has been advocating for at-risk youth who have been fined and arrested for being out on the streets with nowhere to go during the COVID crisis – at a time when Israeli law enforcement has been clamping down on homelessness.

Every year, approximately 140 students are accepted to the CLEC clinics. For more information, visit openscholar.huji.ac.il/clinicallecen/book/clec-experience-assistance-impact-law-students.

Sam Margolis has written for the Globe and Mail, the National Post, UPI and MSNBC.

Canadian refugee law study

Shauna Labman (photo from Shauna Labman)

Amid the world’s largest refugee crisis since the Second World War, Winnipeg-based legal scholar Shauna Labman has come out with the book Crossing Law’s Border: Canada’s Refugee Resettlement Program, an in-depth look at how national and international law and policies have shaped Canada’s resettlement programs.

After growing up in Winnipeg, Labman did her undergraduate degree in English and religion at the University of British Columbia, then went into law school at the University of Victoria.

“At the end of law school, I was called to the bar in Ontario, and then I got a contract with the United Nations High Commissioner for Refugees in New Delhi, India,” said Labman. “I went to India, knowing about refugee laws that I’d studied in law school … which meant I knew about the Canadian context of refugees – how refugee claims are made in Canada, how the Immigration and Refugee Board works. I didn’t know anything about how refugees receive protection in a country like India, which has not signed the [United Nations] Refugee Convention or anything.”

After returning to Canada, Labman accepted a consultancy with the Canadian embassy in Beijing. Realizing that the life of a diplomat was not for her, she returned to UBC in 2007 for a master of laws, which was followed by a PhD. Her graduate supervisor was the current dean of the university’s Allard School of Law, Prof. Catherine Dauvergne.

Of her master’s thesis – “The Invisibles: An Examination of Refugee Resettlement” – Labman said, “It’s about the fact that refugees waiting for resettlement don’t get seen. We only see them when they are resettled … but the program is very ad hoc and there was very little attention given to it at the time.”

As Labman was starting her PhD, the ships Sun Sea and Ocean Lady arrived off the coast of British Columbia, carrying several hundred Tamil migrants seeking asylum from civil war in Sri Lanka. She recalled how resettlement was being discussed then. “The relationship between law and refugee protection and what I call ‘the layer legality of it all,’ how different laws work to position different refugees differently, became the basis of my doctoral work and this book,” she said.

After moving back to Winnipeg 10 years ago, she worked as a law professor at the University of Manitoba. Last July, she joined the University of Winnipeg and its Global College. As a human rights professor, she teaches courses on refugees, resilience, and concepts and conventions of human rights.

“I find this really rewarding work,” she told the Independent. “I sit on the board of the Immigrant and Refugee Community Organization of Manitoba and, in that program, I meet a lot of incredible people who spend a lot of time committed to creating a place of welcome for newcomers in our community.”

Labman’s book looks at Canada’s refugee resettlement program from the 1970s, when there were large numbers of people fleeing Vietnam, Cambodia and Laos, up to the Syrian resettlement that’s been happening in the past decade. It covers the different ways that Canada resettles refugees – the government’s resettlement program and the private sponsorship program, including the newly created Blended Visa Office-Referred program, which works with refugee referral organizations to screen refugees before connecting them with private sponsors.

“One way you can think of it is that resettlement itself is a complement to Canada’s inland refugee protection program,” she explained. “Because not that many refugees are able to come to Canada to claim protection, we have a resettlement program. Within that resettlement program, the government is doing resettlement, but the private sponsorship program allows the broader Canada population, individual citizens, to complement the government resettlement program by resettling refugees as well.

“We need only to look south at the U.S. to see how a change in government can affect refugee resettlement,” she said. “We have a legal obligation to asylum-seekers, but a lot of conversation about the border-crossers right now is about whether they are illegally entering the country and whether they are coming in violation of the law when they cross a border. I would say they’re not. I’d say that part of our recognition in the Refugee Convention is that they cannot be penalized for their entry and that, even within our Immigration and Refugee Protection Act, we recognize that refugees may need to cross in a different way or manner to make their claims of asylum.

“In the same way,” she added, “refugee resettlement isn’t a legal obligation, but law still plays out … in how these refugees are selected for resettlement before they enter our borders, which means that, when they are entering our borders, they are entering with a legal document permitting their entrance. They have a legally valid means of entering the country, even though they didn’t have a legal right to enter the country until they were selected for resettlement. So, the book looks at different ways the law operates within these two programs.”

One area in which the book does not delve, but that Labman said is important, is that the required forms are becoming more complicated to fill out, forcing applicants to seek help from lawyers. “It was too complicated for me to fill out when my family did a private sponsorship application,” she said.

While Labman’s book is academic, it is accessible to a broader readership. “It’s not going to be a page-turner if you’re not interested in refugee resettlement,” she said. “But, if you’ve, say, sponsored refugees and want to understand the program in more detail, it might be of interest. If you’ve worked with refugees, whether in a medical or educational context, in a settlement context … individuals working with refugees, there’s so much history and contextual details to the program. When I was writing this book, that information didn’t exist anywhere particularly clearly. So, if you want a comprehensive understanding of what resettlement in Canada is, this book has that.”

Also, for the main target audience – academics and graduate students in history, philosophy, political science, social work, sociology, law and others – Crossing Law’s Border provides a starting point for their own research on refugee resettlement and sponsorship.

“And, as Canada in the past few years has been promoting the expansion of private sponsorship to other countries, and other countries are taking up private sponsorship models, there’s lots of international interest by governments and policy makers and NGOs in those countries, in what Canada’s resettlement program is about,” said Labman.

The Winnipeg launch of her book took place on Jan. 16, and Labman is planning a launch at the Allard School of Law sometime in May.

Rebeca Kuropatwa is a Winnipeg freelance writer.

Troubles in leadership

A world leader decries investigations into his possible criminal corruption as an “attempted coup” based on “fabrications and a tainted and biased investigative process.”

No, not that world leader. This time it is Binyamin Netanyahu, Israel’s prime-minister-by-a-thread. Finally indicted on graft charges after months of anticipation, he became the first Israeli prime minister ever to face charges while in office. He insists the indictment will not impact his leadership, just as the country seems on an irreversible path to a third election in a year.

In a region with a scarcity of free and fair elections, Israel can’t seem to stop having them. From that perspective, things could be worse. Whether Netanyahu’s Likud party stands with him in his time of trouble remains to be seen. The possibility of his departure from the political scene, which he has dominated for nearly a generation, would provide the most significant shakeup of the field and possibly prevent a third inconclusive outcome.

On this side of the ocean, the U.S. House of Representatives continues investigating President Donald Trump. Few people, including Republicans, are making much of an effort to refute the basic facts. Evidence piles upon itself that the U.S. president indeed asked the president of Ukraine for a dirty political favour – a bribe – in exchange for military financial aid that had already been approved by the U.S. Congress. GOP responses to this evidence range from “So?” to the only slightly more nuanced argument that the president of the United States didn’t get what he wanted and the president of Ukraine did, so no harm done.

With Trump seemingly in thrall or somehow beholden to Vladimir Putin, and his party steadfast behind him, we are treated to the spectacle of a party that 60 years ago was trampling over individual liberties based on a largely false suspicion that “the Russians” were infiltrating the country’s government and threatening its entire way of life now responding to a disturbingly similar situation, this one far more provably real, with a shrug.

While Canada, thankfully, has no such level of political intrigue or corruption at the moment, a shocking diplomatic move last week has set the official voices of the Jewish community on edge.

The day before swearing in a new cabinet, the government of just-reelected Prime Minister Justin Trudeau opted to vote at the United Nations General Assembly to condemn all Israeli settlements in the West Bank, jumping on a dogpile led by North Korea, Egypt, Nicaragua and Zimbabwe, none of whom should be arbiters of justice or human rights. To be clear, the vote means almost nothing in practical terms. But symbolism does count. And the vote was a slap in the face by Canada to Israel and those in this country who recognize it as our closest ally in the region for historical, moral and pragmatic reasons.

Some speculate that the shift in tone reflects the new minority government currying favour with the New Democratic Party, which has included some notorious Israel-bashers. That is probably a less likely reason than the campaign by Trudeau to win Canada one of the rotating seats on the United Nations Security Council. Where former prime minister Stephen Harper’s refusal to “go along to get along” in the anti-Israel hatefest that occurs annually at the UN was seen as a key reason we lost out on a seat, Trudeau seems determined to hedge his bets.

A prestigious seat on the Security Council would presumably elevate Trudeau in the eyes of the world after he frittered away the “Canada is back” optimism of four years ago by failing to meet climate targets while bhangra dancing across the world stage.

Regardless of the motive, it is a reprehensible act that could have serious implications for the political orientation of Jewish Canadians in the next few years. Coming as it does while the ink is barely dry on the results of an election in which Liberals mostly made the right noises to Jewish and pro-Israel Canadians, it seems a particularly brutish little dagger to unsheathe now.

Justice visits Richmond

Justice Richard H. Bernstein, of the Michigan Supreme Court, speaks in Richmond on Nov. 17. (photo from Chabad Richmond)

Michigan Supreme Court Justice Richard H. Bernstein will speak at the Hilton Vancouver Airport Hotel in Richmond on Nov. 17. The event, co-hosted by Chabad Richmond and the Jewish Learning Institute, is called Blind Justice.

“It will feature the inspiring life story and remarkable achievements of this brilliant, blind justice who has overcome countless challenges,” said Rabbi Yechiel Baitelman, director of Chabad Richmond. “Aside from his many legal accomplishments, Justice Bernstein has run 23 marathons and completed an Ironman triathlon, the Israman triathlon’s half Ironman in Eilat.”

Blind since birth, Bernstein became the first blind justice elected to the Michigan Supreme Court in 2014. A Phi Beta Kappa graduate of the University of Michigan, he earned his juris doctorate from Northwestern University School of Law. Even prior to becoming a justice, while working as an attorney for the Sam Bernstein Law Firm, he was known for being an advocate for the rights of people with disabilities.

Bernstein’s cases often set national standards protecting people’s rights and safety. He successfully partnered with the United States Department of Justice to force the City of Detroit to instal wheelchair lifts in city buses, establishing a precedent for accessibility in public transportation. In a landmark settlement against Delta Airlines and Detroit Metro Airport, Bernstein gained accessibility for travelers with disabilities, helping set the standard by which airlines and airports are to be covered under the Americans with Disabilities Act of 1990.

Bernstein also challenged the City of New York to make Central Park and all parks safer for visitors and accessible for individuals with disabilities, including those with visual impairments. This came after he sustained a serious injury in 2012, when he was struck by a speeding cyclist while walking in Central Park.

The justice’s honours include Michiganian of the Year from the Detroit News; one of Crain’s Detroit Business 40 Under 40; and recognition by CNN as a leader in keeping government honest. He was selected by the Young Lawyers Section of the State Bar of Michigan as the 2003-2004 Regeana Myrick Outstanding Young Lawyer Award recipient for exceptional commitment to public service, and is the recipient of the 2008 John W. Cummiskey Pro Bono Award from the State Bar of Michigan, in recognition of his leadership as an advocate and activist.

Michigan Lawyers Weekly named Bernstein a 2009 Leader in the Law and the University of Michigan presented him with the James T. Neubacher Award in 2011, for his commitment to equal rights and opportunities for people with disabilities. Also in 2011, L. Brooks Patterson, Michigan’s Oakland county executive, selected Bernstein as one of the region’s Elite 40 Under 40. In 2013, Bernstein was inducted into the National Jewish Sports Hall of Fame.

On Nov. 17, Blind Justice starts at 7:30 p.m. Tickets are $25 in advance, $35 at the door, and $15 for students; the cost for preferred seating is $40 and the VIP meet-and-greet is $180 per couple. To register or for information, call 604-277-6427 or email [email protected].

Basics of writing a contract

The other day, I finished the contract for an interesting project. There are half-a-dozen people involved in the project. Each of them has something to put in and is getting something out, but there is no direct relationship between one thing in and one thing out. In other words, I couldn’t say, “Mrs. Schwartz pays $100 and Mrs. Goldfarb treats her sciatica.” We were working with a pool of things being exchanged. It was more like, “Mrs. Schwartz pays $50 and provides physiotherapy equipment. Mr. Rosenblum takes $20 and provides a physiotherapy space. Mrs. Goldfarb treats Mrs. Schwartz, takes $30, and tells her other clients that she has space and equipment for physiotherapy.”

In Genesis, Chapter 9, we have the Covenant between G-d and Noah and with all of his descendants, being humankind; it also includes obligations between people. It is not set out as an item-by-item exchange, such as you pay your fare and the bus takes you along its route. It is a pool of obligations, promises and considerations among several parties, being G-d, Noah and each of the people who will descend from him.

This concept of a collection of promises was the structure I needed to put that project to paper the other day. It reinforced a basic technique in writing contracts that makes it possible to write a contract on a napkin.

A binding agreement is made by answering the questions, “Who’s doing what, and when are they doing it?”

The Torah distinguishes between the agreement (brit) and the token – or evidence – of the agreement (ot-habrit).

The agreement itself is the exchange of obligations: humankind will multiply and replenish the earth, will not murder (directly or indirectly) and will not eat meat that is still alive; G-d will provide to humankind the right and ability to hunt and eat meat, will establish the foundation of a justice system and will not flood the earth again.

The token of the agreement is the rainbow. This serves as a reminder both to G-d (verses 14 and 15) and to humankind and all creatures of the earth who can see it.

Today, we make this distinction by using a signed, written contract. The signed, written contract is evidence of the agreement between the parties. This brings us back to the napkin.

You’ll notice that, in my description of the arrangement between Mrs. Schwartz, Mrs. Goldfarb and Mr. Rosenblum, I state what each person does and expects to receive. Nothing happens without someone doing it. The only critical statement missing is the “when.” There are also a few details that would be quite helpful, such as where the money is being exchanged, what equipment is involved, the location of the therapy space, and the length of the therapy session.

In the questions “Who’s doing what, and when are they doing it?” the “what” also includes the “how” and the “where.” In this example, we could say:

“On the 15th day of Kislev, 5780, Mrs. Schwartz will put $50 in the old pickle jar behind the desk at Mr. Rosenblum’s office, which is at 12345 Oak St. She will also deliver, at the same time, an electric stimulation machine and the gel and pads needed for it. She won’t pick it up until the end of Chanukah.

“Mr. Rosenblum will take $20 of the $50 now in the pickle jar and let Mrs. Goldfarb use the therapy cubicle in his office for physiotherapy until the end of Chanukah.

“Mrs. Goldfarb will take the remaining $30 from the pickle jar and will treat Mrs. Schwartz’s sciatica for an hour on the 19th of Kislev and an hour on the 21st of Kislev.

“Mr. Rosenblum and Mrs. Schwartz will let Mrs. Goldfarb use the equipment and space for her other clients until the end of Chanukah.”

In this example, we now know who is responsible for what, when they’re going to do it, and how they’re going to do it.

There are far more details that we could put in, but this would be enough to move forward on its own if Mrs. Schwartz, Mrs. Goldfarb and Mr. Rosenblum don’t get around to writing out something more complicated.

If they expanded from a napkin to a couple of pieces of paper, they could also add in the kinds of details that lawyers argue over: what happens when things go wrong?

The first part of dealing with things going wrong is having everyone promise that it won’t. These are called, in Legalese, the representations and warranties.

Mr. Rosenblum will promise that he has an appropriate space for the therapy, including whatever licences and permits are needed. He also might promise certain details about what is an appropriate space, such as size, privacy, therapy bed, etc.

Mrs. Goldfarb will promise that she has the training, skills, certification and the valid licence required to carry out her obligations. She will also promise to do the therapy in a professional manner to the standards expected by her profession.

Mr. Rosenblum and Mrs. Goldfarb will both promise that they have the appropriate insurance.

Mrs. Schwartz will promise that she has the equipment needed for her therapy and that it works properly.

Now that we know who is going to do what, when and how they’re going to do it, and that they’ve all promised that everything is above board, we can discuss what happens if something goes wrong. Here we get into things like limitations of liability and indemnities. We also might have dispute resolution tools built right into the agreement.

If something goes wrong, no one wants to pay for someone else’s mistakes.

If Mrs. Schwartz trips on the doorstep, Mrs. Goldfarb doesn’t want to be responsible for Mr. Rosenblum not having a smooth entrance to his office.

If Mrs. Goldfarb injures Mrs. Schwartz during treatment, just because it happened in his office, Mr. Rosenblum doesn’t think he should be responsible.

If the electrical equipment causes a fire, neither Mr. Rosenblum nor Mrs. Goldfarb wants to be responsible for the damage caused by Mrs. Schwartz’s faulty machine.

Each will indemnify the others for liability arising from his or her own actions or negligence. In other words, each person promises to pay for the others’ damages for anything that is his or her own fault, whether or not it was intentional.

Dispute resolution is often overlooked because, when people are excited to enter a project together, they tend to think fights aren’t going to happen. But thinking about how to deal with an argument not only makes it easier should an argument arise, it also reduces the likelihood of the argument getting serious.

There are many flavours of dispute resolution tools, but here’s an easy one: the people involved pick an outside person whom they all trust, perhaps their rabbi, and they write in the agreement that, if they can’t resolve an argument between themselves, they’ll ask Rabbi Fogel to help them resolve it.

Remember that a good contract is a clear, written statement of a shared vision.

Jeremy Costin is a business and estates lawyer practising in Vancouver. He sits on the board of directors and the governance committee of the Vancouver Holocaust Education Centre, is a founding director of the Jewish Lawyers Association of British Columbia and is a frequent guest instructor at the Law Society of British Columbia.