Tag: law

How to avoid tax trap

(photo from pxhere.com)

One of the last problems you’d expect in creating a power of attorney is to find your company losing a bunch of tax advantages because the Canada Revenue Agency (CRA) decides you and the person you appointed in the power of attorney have related companies.

If your company is small and Canadian-controlled, it gets certain tax advantages; however, CRA doesn’t want you to break a large company into a bunch of small pieces to multiply those tax advantages. If you give each of those pieces to a different person, but maintain control through powers of attorney, CRA will still consider all those pieces to be one company.

Unfortunately, CRA doesn’t recognize the difference between a general power of attorney used to control a company and an enduring power of attorney used to help someone when they’re incapacitated. Here’s an example of the trap that can happen if you’re not careful with a power of attorney.

(Disclaimer: this is not tax advice; it is a simplified illustration of the small business tax rules and how they’re applied with respect to control and powers of attorney.)

I’ll give you two scenarios. The first one illustrates what CRA is trying to avoid, and the second one illustrates what it catches by accident.

First scenario: avoiding multiplication of the small business deduction

Patricia Hindenburg has three adult children: Roberta, Paulina and Bradley. She runs a clothing company, Whole Lotta Cashmere Fashions Inc., with stores in the Kitsilano, Yaletown, Commercial Drive and Marpole neighbourhoods.

Whole Lotta Cashmere Fashions is doing very well. Last year, it earned $2.4 million before tax. The company is a Canadian-controlled private corporation and is eligible for the small business deduction. The deduction means that, instead of paying about 35% income tax on $2.4 million, Whole Lotta Cashmere Fashions only pays that on $1.9 million. The first $500,000 is taxed at about 10%. (Again, these are not the real tax rates and I’m simplifying the calculations.)

Patricia realizes that, if she split the company into four companies, each owned by a different person, the companies would together pay 10% on $2 million and only $400,000 would be caught by the higher tax rate. So, she splits the company into four, giving one to each of her children and keeping one for herself. This way, each of the four companies will be eligible for the small business deduction – each will only pay 10% on its first $500,000 of earnings.

To make sure that the companies remain successful and operating just the way she likes, Patricia asks her kids each to grant her power of attorney over their voting shares in their companies.

She now has control over all four companies. Their combined income is still around $2.4 million, but she believes the collection of companies has a small business deduction of $2 million instead of $500,000. She expects to pay 10% on $2 million and 35% on $400,000.

CRA does not allow this, however. Because of the powers of attorney that give Patricia control over all of the companies, CRA taxes them as one big company the same way it did before the split.

This seems fair. If the companies are truly independent, they should each get the small business deduction but, if you split a big company into a bunch of smaller ones and you maintain control over them, you don’t get a bunch of small business deductions.

Second scenario: getting tax-trapped in incapacity planning

Stephanie Edwards has a metalworks shop, Icarus Metalworks Inc., that is doing very well. She has apprenticed each of her five children, Adriana, Murray, Nicole, Dickens and Jan, in the art and trade of blacksmithing.

A few years ago, Adriana and Dickens decided they prefer ceramics, and they opened their own company, Can I Play With Porcelain Ltd.

Last year, Icarus earned $700,000. Can I Play With Porcelain did pretty well too; it earned about $450,000.

Icarus should pay 10% on the first $500,000 and 35% on the remaining $200,000. Can I Play With Porcelain is under the limit for the small business deduction, and should only pay 10% on all $450,000 of its earnings.

Unfortunately, after all these years of literally bending iron and steel to her will, Stephanie has serious joint problems. She is finding it hard to write. This has her thinking about making sure her kids can take care of things for her if (and when) she’s unable.

Stephanie thinks carefully about her kids, and who would be in the best position to help her. She decides to grant an enduring power of attorney to her eldest, Adriana. The power of attorney is, as is the case with most enduring powers of attorney, unrestricted and it is effective from the moment it is signed. Stephanie wants to make sure that Adriana can help her even while she is still capable, because she doesn’t know for how much longer she’ll be able to sign cheques, etc., given her joint problems.

Here’s the trap: the CRA determines that the power of attorney allows Adriana to use Stephanie’s shares to control Icarus. This is true – Adriana can do anything on behalf of Stephanie that has to do with finances (including business, real estate and legal matters). Therefore, Icarus Metalworks Inc. and Can I Play With Porcelain Ltd. are now considered related companies. Can I Play With Porcelain Ltd. loses its small business deduction. Between the two companies, the first $500,000 is taxed at 10% and the remaining $650,000 is taxed at 35%.

Is there a way around this? Yes.

Two powers of attorney are prepared, both enduring, both restricted – in exactly opposite ways – and one is made “springing.”

In the first instance, Stephanie grants an enduring power of attorney to Adriana, effective immediately and without any limits or restrictions except that Adriana may not use it to vote or in any other way act on Stephanie’s shares of her company, Icarus Metalworks Inc.

This will probably cover about 95% of what Stephanie needs Adriana to do.

Eventually, Stephanie may lose capacity and need Adriana to take control of her company. At that point, the benefit of Adriana controlling Stephanie’s shares will outweigh the tax consequences. There’s also the slim hope that by then, the Income Tax Act will be amended so as not to catch enduring powers of attorney anymore.

Stephanie grants a second enduring power of attorney to Adriana, but this one has two limitations in it. It only applies to Stephanie’s shares of her company, to avoid any confusion regarding which power of attorney applies in any given situation. Also, it is not effective until Stephanie loses capacity – this is called a “springing” power of attorney. It springs into effect only when Stephanie is no longer capable of managing her affairs. This prevents CRA from considering the companies to be related until it’s absolutely necessary, and this is a recognized technique among lawyers who practise regularly in the areas of estate and incapacity planning.

Jeremy R. Costin, JD, is a business, estates and ecommerce lawyer at Costin Law. He can be reached at 604-742-0717 or [email protected].

Impacts of nation-state

Canada’s identity has evolved dramatically since the Second World War. First, the country’s self-image changed from an Anglo orientation as a member of the British Empire-cum-Commonwealth to a concept of “two founding nations,” which included the recognition of bilingualism and biculturalism as pillars of our identity. No sooner had that change been digested than we broadened the definition of Canadianness to incorporate multiculturalism and then, very belatedly, we have recently come to recognize the important place of indigenous Canadians and to attempt to reconcile our peoples with the history of injustice and cultural genocide perpetrated against First Nations.

Not all countries are given to this sort of evolving self-identity. Israel, in very different ways but over the same period, has struggled to define itself in a manner that reflects both its founding premise and its demographic and cultural realities. For several decades, the country has debated the question “who is a Jew?”; a riddle that goes to the heart of the nation’s identity in part due to the Law of Return, which grants citizenship to any Jew. But the place of non-Jewish citizens – both in the state of Israel and, more problematically, in the territories occupied in 1967 – has confounded the country as it struggles to be both a democratic country and one particularly founded as the homeland of the Jewish people.

This matter was brought to a head (again) recently by a law passed by the Knesset dealing with the country’s Jewish identity.

In practical terms, the “nation-state law” has little impact. If an Israeli didn’t follow the news, they would probably not notice any change in their daily life. The law is mostly symbolic. It enshrines the Jewish calendar as official, declares Jerusalem the country’s capital, codifies what was already the practical reality in terms of Jewish iconography in Israeli national symbols, such as the Star of David on the flag and the menorah on the national shield. But, it also explicitly downgrades the Arabic language, mother tongue of 22% of the country’s population, from official language to one with a “special status.” That doesn’t mean that Arabic (or English) will be erased from street signs or other official places, but it is a calculated poke in the eye to the country’s largest minority population – people who have struggled for decades to adapt themselves to their status as non-Jewish citizens of the Jewish state.

Critics, particularly on the left, have condemned the law as the triumph of Jewishness over democracy in the continuing struggle over the country’s identity as a Jewish and democratic state. Some claim that the accusation of “apartheid” has now been proven and codified. Competing New York Times op-eds by Ronald Lauder, head of World Jewish Congress, and Naftali Bennett, Israel’s minister of Diaspora affairs, took diametrically opposing positions on the law.

The law’s enemies perhaps did themselves no favours during a mass rally in Tel Aviv nearly two weeks ago, when Palestinian flags were prevalent and some participants seemed to be promoting a one-state resolution.

The controversy is the culmination of several years of debate over the law, or variations on the theme. Prime Minister Binyamin Netanyahu defended the final bill, which passed the Knesset overwhelmingly.

“We enshrined in law the basic principle of our existence,” he said. “Israel is the nation state of the Jewish people, that respects the individual rights of all its citizens. This is our state – the Jewish state. In recent years, there have been some who have attempted to put this in doubt, to undercut the core of our being. Today we made it law: this is our nation, language and flag.”

The prime minister’s words are accurate enough. He acknowledges the fundamental and perhaps irreconcilable tug between “the nation state of the Jewish people” and one that “respects the individual rights of all its citizens.” And he is correct that the law enshrines what was already the de facto reality.

He is also not far off the mark in stating that some have tried to put in doubt Israel’s identity as a Jewish state – there are calls in the Middle East and elsewhere for a unitary state between the Mediterranean and the Jordan River, a concept that would effectively eliminate Jewish national self-determination. Yet, this is perhaps the most specious of Netanyahu’s arguments. Yes, there are those would see the Jewish state destroyed. But these voices are no more mainstream nor prevalent than they have been in recent years.

The law is red meat for Netanyahu’s core supporters and those to their right. It is a provocation – and an unnecessary one – that even the prime minister claims has no real, practical impact.

However, it does have an impact – and one that is perhaps not unintended. The law makes non-Jewish citizens of Israel feel isolated and demoralized and it strengthens the case of those inside and outside Israel who condemn the country for inequality and favouritism.

Taking abusers to court

In the third of a series of articles on sexual harassment and violence in the Jewish community, the Jewish Independent speaks with lawyer Megan Ellis, Q.C.

Megan Ellis is one of the first lawyers in Canada to have devoted a significant part of her practice to pursuing claims on behalf of adult survivors of sexual assault and childhood sexual abuse.

In 1976, Ellis began volunteering at a rape crisis centre in Vancouver. This led to jobs working at rape crisis centres in Vancouver and in London, England, from the late 1970s to early 1980s.

“I was interested in law,” she said. “I always have been. It was my intention to become a lawyer eventually.”

Ellis passed the bar in 1988 and went into civil claims. In 1992, she and her partner led a successful challenge to the time limitation in Canada. As a result, in 1993, the law was changed in British Columbia, and the province became the first jurisdiction in Canada to remove the time limit for survivors to bring claims against perpetrators and institutions regarding sexual abuse.

In that groundbreaking case, an uncle was charged with sexually abusing several girls in the family over several decades from the 1950s to 1970. The girls were toddlers – as young as 2 years old – when the abuse began, and it continued into their early teens.

Many more cases have since followed.

“I have children’s parents who call me and ask what to do when their kids have been sexually abused,” said Ellis. “I discuss with them what they want their outcome to look like. Often, they haven’t decided if they want to go through a criminal process or not. So, they have to make that decision initially. If they decide they want to go through a criminal process, I ask them to wait until that is concluded before commencing a civil process – unless there are unusual circumstances, like it looks like the perpetrator might die, move all their assets to a Swiss bank account, or something like that.”

Once a decision is made to proceed through the civil system, Ellis collects all the relevant documents, such as income records, counseling records, medical records and educational records – as much information as possible. She then reviews everything and starts the process of drafting the legal documents, filing them and serving them to the perpetrator or institution.

“One thing I always discuss is whether or not that should be preceded by a demand letter,” said Ellis. “Sometimes, I collect all the information and put together a settlement letter in hopes the person will settle and pay out the claim, rather than go through the more public civil system.”

The settlement letter states what the accused did, that these are the consequences and the accuser wants X amount of dollars paid within a given time frame. The letter also states that, if the accused does not pay, the accuser will sue.

If the perpetrator does not settle, one can expect the legal cost to run between $10,000 and $15,000. Ellis advises her clients to verify that the perpetrator has assets.

“There are many people I have to tell, ‘Look, I do not doubt what you’re telling me at all, but it might appear that the perpetrator doesn’t have assets,’” said Ellis. “And there’s no point suing someone who doesn’t have assets.”

Claimants also need to take into consideration that, to date, the damages awarded for sexual abuse have been very low; in some cases, similar to what someone would get for mild whiplash from an accident.

“They don’t actually recognize the long-term effects of one incident, depending on the circumstances,” said Ellis. “They’ve been getting better over the years, but there’s still quite a long stretch before judges understand the very serious long-term implications.… There are 25-year-olds who get raped and it has a profound impact on the rest of their lives. The social reaction to being raped and the effects that it has are long-term. They are permanent. I think it’s fair to say that anyone who’s been raped has been permanently changed by that experience.”

In British Columbia, a lawsuit can take two to three years from start to finish. As for privacy, one can expect a ban on publication, though that is not guaranteed. Both the court records and courtrooms are publicly accessible.

If one is determined to confront their perpetrator, they may have a hard time finding representation. Lawyers who take on such cases are overburdened.

“My instructions for my staff are that I am booked for no more than four consultations per week,” said Ellis. “That was two or three years ago. Now, I’ve cut off … I’m not able to take more. I have enough now to keep me going for quite some time and I can’t possibly take any new cases. So, it’s gone from four per week to zero. And I’m not keeping tabs on all the people I’m turning away. I give other names, but I’m not sure of who’s taking these cases at the moment.”

Ellis has been instrumental in changing the law that allowed perpetrators to claim bankruptcy to escape paying the judgment.

“What started to happen in the first few years I was doing this is that the perpetrators would fight the cases and then spend all their money defending themselves,” said Ellis. “And then, they’d end up going bankrupt and walk away from the judgment.

“I was involved in amendments to the bankruptcy and insolvency act, which meant that you didn’t get rid of a judgment for assault or sexual assault just by going into bankruptcy – the judgment survives the bankruptcy. So, they may have gotten rid of their assets, but they haven’t lost their capacity to earn income, their inheritances … there are ways to go after them. The perpetrator’s thinking before was that they’d rather pay lawyers than pay their accusers, thinking that, then, it’ll be gone and they won’t have to worry about it.

“Funnily enough, I haven’t had a case where the perpetrator has gone into bankruptcy since.”

Since the #MeToo movement, Ellis has noticed a change in how various companies and institutions deal with their responsibility, a shift to more appropriate responses to allegations of abuse. The movement also has helped instil in people’s minds is that, typically, when it comes to sexual abuse, there is not just one victim, there are many.

“This is because there are all kinds of efforts the perpetrator makes to silence their victims,” said Ellis. “Societal mores are such that it doesn’t take a whole lot, because there’s fear and disbelief … and then, the perpetrator adds to it by saying, ‘If you ever tell anyone, you won’t be believed,’ etc.

“One thing that is particularly problematic in institutions is that they generally turn a blind eye in order to protect themselves … unless somebody’s standing on their doorstep with a picket sign.

“Essentially, what’s happened is that someone is now standing on their doorstep with a picket sign. Many of the institutions I’ve sued, there were, I believe, people, who knew but didn’t come forward, partly due to consequences for workers, teachers, social workers … for coming forward and making an accusation. They don’t want to take it on.”

Institutions are learning the hard way that it’s more cost effective for them to educate their employees about what abuse is and to report it.

“One place where there is still a lot of abuse is in the workplace,” said Ellis, giving the example of sexual harassment. “But, that’s an employment law context and I personally have never dealt with those cases.”

Rebeca Kuropatwa is a Winnipeg freelance writer.

A law career with many firsts

Morton Minc is Concordia University’s first jurist-in-residence. (photo from Morton Minc)

During his long career in the field of law in Quebec, Morton Minc has made several firsts. His latest – becoming Concordia’s first jurist-in-residence.

Born in Lublin, Poland, Minc came from a very religious, but also academic, family. His father was studying medicine in Paris when the Second World War broke out. The family made their way to Montreal and started over again, with only $17, provided by the Jewish community.

After graduating from Sir George Williams University with an arts degree, Minc went onto law school at the Université de Montréal, where he won several awards. He then joined a large law firm and eventually opened his own practice, specializing in general commercial banking law. He married his wife, Linda, and they had one daughter, Samantha (who is a vascular surgeon in the United States).

“I then was the first Jewish judge in the history of the municipal court of Montreal,” said Minc of his 1993 appointment. “Then, I was nominated as chief justice of the municipal court of Montreal [in 2009], and I was the first Jewish anglophone judge appointed to the municipal court in their history.

“When I became chief judge, I used the court in a different manner,” he said. “One part of the court was streamlining toward social justice programs, social justice courts and problem-solving courts, and the other was traditional justice. The aim of the social justice court is not only to identify an individual’s problem, but also to assist, rehabilitate and help him/her to find his/her way back into society … once they’ve completed the program set by the court successfully, and even decriminalizes their record when possible. In other words, they were charged with a criminal matter or with statutes where they had to pay all these fines … [and] we had made arrangements with an execution department of the city for them to get amnesty.”

Minc was responsible for initiating the program, including working with judges who specialized in mental health.

“We had Crown prosecutors who specialized in the mental health program and a defence lawyer full-time to assist the offender who had the mental health issue when he/she committed a crime,” said Minc. “These people worked not in a combative way, but it’s what we call, ‘participating justice.’”

Most judicial systems are considered adversarial, where the parties are in opposition to one another. But, in these social justice and problem-solving courts, he explained, everyone is working together on the same “side” toward the good of the person on trial.

“I was responsible for establishing the court for the homeless,” said Minc. “We had judges dedicated to the issue of homelessness, so we’d find the person a place to live if s/he had a mental issue, alcohol issue and/or drug issue…. We’d work toward resolving these problems. It wasn’t necessarily a problem of homelessness.

“We dedicated a court only for these social issues, so that they wouldn’t be in the mainstream of the criminal system … so that they would not be embarrassed; the homeless, they wouldn’t feel ill-at-ease. And, the same thing for mental health and domestic violence court…. I can tell you, the success rate was over 85%. It was a win-win situation…. We had a minister of justice coming to our court every year to see what we were doing in our social programs.”

Minc attributed his own compassion for others to his Jewish heritage and its tradition of involvement with and assistance for those who are less fortunate.

When it came time for him to leave his position, Minc – who said he is not a believer in retirement – was asked to meet with Concordia University president Alan Shepard, provost Graham Carr and the dean of the faculty of arts and science, André Roy. The trio invited Minc to join the history department’s Law and Society Program, and he accepted, becoming the first jurist-in-residence.

“My role, or the goal, is to help students, mentor students, on what they could do in the future, about law school…. You don’t have to necessarily become a lawyer, but to get a law degree, or become a lawyer,” said Minc. “There are all kinds of different other institutions you could work at and use your law background for.”

In addition to introducing students to different aspects of law, Minc is helping students find ways to get involved in the legal system, using his vast knowledge and contacts.

“Perhaps Concordia will have its own law faculty one day,” said Minc. “My goal is to stimulate and excite students about the law – and it seems well-received.

“While Concordia doesn’t have a law school,” he added, “it offers students the option to minor in law and society, and to study issues like governance, crime, conflict and social justice from sociological, historical, anthropological and philosophical perspectives.”

Minc’s appointment as jurist-in-residence is for a two-year term and, while he hopes that his successor continues what he is starting, he is focused on doing what he can do now. So far, all of the events he has organized have sold out.

As example of the types of events he has put on, Minc hosted a fireside chat with now-Chief Justice Richard Wagner of the Supreme Court of Canada, on Nov 23. 2017. The talk covered Wagner’s journey to becoming a judge and what it’s really like to be part of the Supreme Court.

On Oct. 19 last year, Minc hosted an event on the legal and psychological implications of the maltreatment of children. A number of distinguished panelists took part, including Judge Patrick Healy (Quebec Court of Appeal) and Judge Martine Nolin (Court of Quebec, Youth Court Division).

Minc also mentored the Concordia Moot Law Society for a legal debate competition against other Canadian universities. He helped student delegates prepare legal arguments and taught them about legal jargon.

Rebeca Kuropatwa is a Winnipeg freelance writer.

Praise for whistleblowers

Alan Le Fevre, president of the Wallenberg-Sugihara Civil Courage Society, and Acting Mayor Raymond Louie, right, with the City of Vancouver’s proclamation of Raoul Wallenberg Day. (photo by Masumi Kikuchi)

“If we had a society that was free from embezzlement, free of theft, free of dishonesty, free of unethical conduct, we wouldn’t need whistleblowers. But, unfortunately, we are not a perfect society,” said Ujjal Dosanjh in his keynote address at the 13th annual Raoul Wallenberg Day event, which was held on Jan. 14 at the H.R. MacMillan Space Centre.

Dosanjh, a former federal cabinet minister, B.C. attorney general and the province’s 33rd premier, was, in 2015, the inaugural recipient of the Wallenberg-Sugihara Civil Courage Society’s Civil Courage Award. He was recognized for “his great courage in the face of escalating violence by extremists in the Indo-Canadian community that arose from conflicts that had erupted in India,” said WSCCS board member Ana Policzer in her remarks on Sunday.

The society hosts the annual Wallenberg Day event and, this year, they honoured Vancouver-based lawyer Alayne Fleischmann with the Civil Courage Award.

Fleischmann was born in Terrace, B.C. She got her bachelor’s degree in philosophy from the University of British Columbia, her master’s in international and comparative law from the Institute of International and Comparative Law, Cornell Law School and Université Paris (Sorbonne), and her juris doctor degree from Cornell. In 2006, she was working in quality control at JPMorgan Chase in New York. There, she discovered and tried to stop what she described as “massive criminal securities fraud” – mortgage operations similar to those of many other financial institutions, which led to the 2008 economic collapse. Her efforts resulted in a $9 billion fine being levied on JPMorgan Chase, but no one from the bank was ever prosecuted. She moved back to British Columbia in 2008.

In a 2014 Rolling Stone article, writer Matt Taibbi goes into great detail about Fleischmann’s experiences, the difficulties she faced in bringing the truth to light and the limited impact the truth played in whatever minor justice was carried out against all the banks guilty of mortgage-related wrongdoings. In effect, Taibbi argues, the U.S. department of justice “struck a series of historic settlement deals with Chase, Citigroup and Bank of America. The root bargain in these deals was cash for secrecy. The banks paid big fines, without trials or even judges – only secret negotiations that typically ended with the public shown nothing but vague, quasi-official papers called ‘statements of facts,’ which were conveniently devoid of anything like actual facts.”

The full Rolling Stone article can be accessed via wsccs.ca/wallenberg-days/2018. At the Wallenberg Day event, organizers screened a 2014 interview with Taibbi and Fleischmann by Democracy Now! WSCCS president Alan Le Fevre also spoke briefly about Fleischmann’s actions and why she was chosen to receive the Civil Courage Award. Unfortunately, Fleischmann could not accept the award in person because of the ongoing litigation.

In his remarks, Dosanjh saluted whistleblowers. “In Canada,” he said, “we don’t know too many of our own heroes…. But we have them. One that we have amongst us in Canada is the honouree tonight, Alayne Fleischmann.”

There are monetary costs to illegitimate or immoral actions, Dosanjh said, but such actions also “jeopardize the health, safety and well-being of the employees, the customers and the society of the institutions.”

Whistleblowers like Fleischmann set out to right a wrong, he said. They are morally compelled to the point where they take the “risk of losing their careers,” “being ostracized” and having rumours spread about them to “delegitimize the truth that they’re trying to tell.”

After such individuals come forward, he said, “life is never the same. You lose friends, you lose relationships, obviously you lose a job possibly, or you’re not promoted or you’re demoted…. And, sometimes, it can be dangerous physically. People have been known to be killed, at least across the border, for trying to expose the truth. Karen Silkwood comes to mind.”

Dosanjh warned that whistleblowers aren’t always correct, however, giving the example of eight B.C. health ministry workers who were found to have been wrongly dismissed in 2012, amid allegations of wrongdoing. “It’s a risky business,” he said. “You’re playing with your own life but you’re also playing with the lives of others you’re trying to expose.” So, you have to not only have the courage to speak up, he said, but the wisdom to know when to not do so, or when to investigate further before doing so.

Several audience members gave their take on corporate and government corruption in the question-and-answer period. Dosanjh said people need to get more vocal about these issues. “There is no silver bullet to deal with any particular issue,” he said. “It’s just a matter of becoming more active politically and raising your voices.”

To an audience member who decried greed as criminal, Dosanjh said, “If you say greed is the basic urge to make more money, that shouldn’t be a crime…. You want to make money, you want to work more … that’s what keeps the world going…. Illegal greed should be a crime – and it already is! The fact is we’re not prosecuting criminals, we’re not apprehending them, we’re not investigating them as much as we should, and we’re falling down in some respects.”

The afternoon event also included the reading by Acting Mayor Raymond Louie of the City of Vancouver proclamation of Jan. 14 as Raoul Wallenberg Day. He thanked event organizers and attendees for taking the time “to remember and to also recommit … with this ongoing effort to have a better world overall.”

The WSCCS is continually “seeking to identify people who, at significant personal risk, have helped to improve or save the lives of others by going against unjust laws or conventions.” For more information, visit wsccs.ca.

Milman now a judge

In Ottawa on June 14, the Hon. Jody Wilson-Raybould, minister of justice and attorney general of Canada, announced the following appointments under the new judicial application process announced on Oct. 20, 2016: Carla L. Forth, QC, partner at Guild Yule LLP, Michael Tammen, QC, a sole practitioner, Warren B. Milman, a partner at McCarthy Tétrault LLP, and Nitya Iyer, QC, a partner at Lovett Westmacott, were appointed judges of the Supreme Court of British Columbia.

The new judicial application process emphasizes transparency, merit and diversity, and will continue to ensure the appointment of jurists who meet the highest standards of excellence and integrity.

Milman, a member of the Jewish community, practised litigation with the Vancouver office of McCarthy Tétrault LLP for 24 years, with a focus on insolvency, commercial litigation, class actions defence and constitutional law. In the course of his practice, he also acted on many occasions for both for the Crown and for the defence in criminal and regulatory prosecutions.

Milman came to the law after earning a bachelor of arts from McGill University and pursuing graduate studies in classical archeology at the Hebrew University in Jerusalem from 1985 to 1988. He obtained his LLB and BCL from McGill in 1992. He was called to the British Columbia Bar in 1993 and admitted to the State Bar of California in that same year.

In addition to his private practice, Milman has devoted a substantial part of his career to promoting meaningful access to justice for ordinary Canadians. He has taken on numerous pro bono cases before courts and regulatory tribunals. In addition, he served as chair of Pro Bono Law of British Columbia, both prior to and during the organization’s merger with the Access Justice Society to form Access Pro Bono in 2010. He was appointed a governor of the Law Foundation of British Columbia in 2010 and served as chair of its board of governors in 2015 and 2016.

Who owns the past?

Left to right: Mitchell Gropper, QC; Prof. Guy Pessach, Hebrew University; Prof. Catherine Dauvergne, dean of the Peter A. Allard School of Law, University of British Columbia; and Randy Milner, Vancouver chapter president, Canadian Friends of the Hebrew University. (photo from Canadian Friends of the Hebrew University, Vancouver)

What happens to the archival materials of a Jewish community when that community no longer has the capacity to maintain itself can be complicated and messy. A 2013 Supreme Court decision in Israel provided a solution but also raised important questions about identity, collective memory and the relationship between Israel and the Diaspora.

On March 17, Prof. Guy Pessach of Hebrew University of Jerusalem presented a lecture as part of the Mitchell H. Gropper, QC, Law Faculty Exchange Program. An initiative of Hebrew U and University of British Columbia, the program’s UBC webpage notes that, since the program began in 2010, each law faculty “has hosted three visiting professors from the other university.”

Pessach’s topic was Who Owns the Past? – Law, the Politics of Memory and the Israeli Supreme Court. He discussed two cases but focused primarily on a lawsuit involving the Vienna Jewish community and the Central Archives for the History of the Jewish People, which is in Jerusalem. He said decisions made by the Israeli Supreme Court reflected a propensity for Israel to regard itself as the international arbiter of Jewish cultural property and collective memory.

According to Pessach, Vienna was the second-largest Jewish community in Europe in the early 20th century. The nearly 200,000 Jews in the 1930s were reduced to fewer than 9,000 after the Holocaust. In the early days of Israel’s statehood, the Central Archives actively collected materials from Jewish communities in Europe to safeguard the rich Jewish history of these disappeared communities.

Although the Viennese community continues to decline in population, he said, in the 21st century, it sufficiently reorganized to request the return of its archival materials from the Central Archives. When the archives refused, claiming that the material was given on “indefinite loan,” Vienna’s Jews launched a lawsuit.

According to a January 2013 article in Haaretz, “The collection includes thousands of papers stored in 200 containers, documenting 300 years of the Vienna community from the 17th century up to 1945. After the Holocaust, community leaders decided to transfer the archive to Jerusalem, fearing it would not be stored properly in Vienna, and they continued to add documents to the collection. Yet the Viennese community insists it sent the documents – in four shipments in 1952, 1966, 1971 and 1978 – with the explicit agreement, time after time, that the documents were only on loan and remained the property of the community.”

Vienna lost its case. At the time, Israeli state archivist Yaacov Lozowick, stated, according to Haaretz, that “the depositors felt they were strengthening the cultural importance of the young state of Israel as the centre of the Jewish people; they were proud about their contribution; and they had no intention of the collection ever returning.”

In the case, said Pessach, Israel asserted its place in the Jewish world as protector of Jewish identity and history. He explained the ins and outs of the court’s decision and discussed the issues of cultural property law and restitution. He said restitution is not just the physical return of culturally and historically significant items but also symbolic justice for a community. He noted that similar situations continue to play out in Jewish communities, in the form of art stolen by the Nazis, and that Canadian First Nations and many other groups are also currently seeking restitution for cultural property stolen during colonial times.

For more information on the Mitchell H. Gropper, QC, Law Faculty Exchange Program, call the Canadian Friends of the Hebrew University office at 604-257-5133 or email [email protected]

Seminar on law and justice

Congregation Beth Israel Rabbi Jonathan Infeld, right, and Howard Mickelson, QC, receive the Schechter Haggadah from the president of the Schechter Institute, Prof. David Golinkin, at the Schechter Institute of Jewish Studies in Jerusalem. (photo by Linda Price)

A group of 20 lawyers and judges from Canada visited Israel for a five-day Law and Justice seminar at the Schechter Institute of Jewish Studies in Jerusalem. Meeting with some of their Israeli counterparts, participants immersed themselves in the topics of Maintaining Security, Rule of Law, Democracy and the Jewish Way of Life.

Mission delegates participated in a reception at the Rooftop Restaurant, Mamilla Hotel, followed by a talk by the Hon. Justice Dalia Dorner, former Israeli Supreme Court justice. Mission delegates, several of whom are not Jewish, heard Dorner’s explanation of the special character of Israel, which is both a Jewish and democratic state. She said, “Israel must unite both of these values. Indeed, certain Jewish values are very compatible with democracy. Furthermore, the founding fathers of Israel chose freedom, justice and peace as the basic values upon which the state is founded, and no one can change this.”

The next day, the jurists met with Justice Elyakim Rubinstein, vice-president of Israel’s Supreme Court and former attorney general. They also toured the award-winning building. Rubinstein explained the uniqueness of Israel’s Supreme Court and how it differs from those of other Western countries. He also discussed topical issues such as the appointment of Supreme Court justices and the proposed Regulation Law.

Afterwards, delegates traveled to the Ministry of Justice in East Jerusalem and met with Israel State Attorney Shai Nitzan, who spoke about the difficulties of safeguarding human rights during times of war and insecurity.

photo - Members of the group at the Neve Schechter in Tel Aviv
Members of the group at the Neve Schechter in Tel Aviv. (photo by Linda Price)

On the Thursday, Ambassador Efraim Halevy, the ninth director of Mossad, who was born in England, gave a talk on the interrelationship between Israel, the United States and Russia, and each country’s interest in the Middle East. Halevy said, “Israel cannot be destroyed” and that “Iran never was and cannot be an existential threat to the state of Israel. There is no state or entity that represents an existential threat to the state of Israel.”

On Friday afternoon, delegates visited the Neve Schechter Centre for Jewish Culture in Neve Zedek, Tel Aviv, and heard several lectures. Prof. Gideon Sapir from the faculty of law, Bar-Ilan University, and a candidate for the position of Supreme Court justice, gave a lecture explaining the issues of Israel’s “blue laws.” He noted the quandary of employing workers on the Sabbath in Israel and creative legal solutions to this dilemma, which counterbalances two values: one Jewish – the right to a day of rest; and the other democratic – the basic right to freedom of employment.

The mission was the initiative of Rabbi Jonathan Infeld of Vancouver’s Congregation Beth Israel and one of his congregants, attorney Howard A. Mickelson, QC. A group of Jewish and non-Jewish lawyers meets regularly in Vancouver, in a Law and Learn program for lawyers that deals with contemporary issues in civil law, bringing in guest lecturers. A Jewish law component is added to each session by Infeld.

Because of Infeld’s long-term connection to the Schechter Institute of Jewish Studies, Schechter was chosen to lead the mission and to implement the study program. The mission’s goal was to enable a group of Canadian leaders to study, up close, the social, military and political issues facing Israel as a democratic and Jewish state, both from a general legal and a specific Jewish legal/religious standpoint.

Radical innovation requires changes to law

Left to right: Bo Rothstein, CFHU Vancouver president Randy Milner, Prof. Michal Shur-Ofry and Justice Bruce Cohen. (photo by Michelle Dodek)

The main boardroom at Farris was full of lawyers who had come to hear Prof. Michal Shur-Ofry of the law faculty at Hebrew University of Jerusalem. The Oct. 6 event began with a brief presentation by University of British Columbia law professor Christie Ford on her experience at Hebrew University in the spring as part of the Mitchell Gropper Law Faculty Professorship Exchange. Bo Rothstein, a partner at Farris, gave a warm welcome and introduced the keynote speaker, an internationally recognized expert in intellectual property (IP).

Shur-Ofry’s lecture was titled From Newton to Shechtman: Can Intellectual Property Facilitate Nonlinear Innovation? She told the story of Dr. Dan Shechtman, an Israeli researcher who observed “quasicrystals” in 1982, a discovery that scientists were convinced was impossible; Shechtman nearly lost his career as a result of publishing his findings. In 2011, however, he was vindicated when he was awarded a Nobel Prize in chemistry for this discovery. The dramatic story of this Israeli Nobel laureate illustrates aspects of nonlinear innovation, those that shift existing paradigms.

Another example of such a paradigm shift, said Shur-Ofry, was the introduction of cubism by the artists Pablo Picasso and Georges Braque. Their movement away from the representational depictions that had previously dominated art was at first ridiculed. Once accepted, however, their innovative contributions became a crucial building block of 20th-century art and beyond.

The world is currently biased against radical innovators, Shur-Ofry maintained, but she believes that “a de-biasing mechanism” is possible through IP law. This area of law, which encompasses copyright and patent law, can help artists, scientists and other innovators to be brave and to contribute their novel innovations without the kinds of risk taken by the Picassos or Shechtmans, she said.

“If an artist first sells a piece for just $900, and then it is resold for $85,000, the artist is entitled to a share of that sale price.”

Citing droit de suite, a law adopted by the European Union and 70 other countries that gives artists protection by entitling them to part of the proceeds of subsequent sales of their art, Shur-Ofry explained by way of example, “If an artist first sells a piece for just $900, and then it is resold for $85,000, the artist is entitled to a share of that sale price.” She acknowledged that while this type of remuneration exacts a cost on doing business, its benefit to artists who are innovators can drive others to produce novel works, instead of commercially proven, formulaic art.

It is this type of law, along with other incentives to inventors, that Shur-Ofry champions. She described patent laws that would grant access to the successful results of works protected through patents, as well as the “negative knowledge” that results in even greater innovation and discovery. Great problems are often solved by discovering an error in the paradigm, she explained. Therefore, access to the challenges and roadblocks in developing technologies may be the key to solving even greater problems. She said that she hopes to convince lawmakers that changing IP laws will encourage non-linear innovation and be universally beneficial.

The Mitchell Gropper Law Faculty Professorship Exchange facilitates annual exchange between Hebrew University and UBC law professors, and enables annual lectures by visiting Hebrew University law professors. For more information about the exchange or the programming of CFHU in Vancouver, visit cfhu.org or contact executive director Dina Wachtel at 604-257-5133.