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"The Basketball Game" is a graphic novel adaptation of the award-winning National Film Board of Canada animated short of the same name – intended for audiences aged 12 years and up. It's a poignant tale of the power of community as a means to rise above hatred and bigotry. In the end, as is recognized by the kids playing the basketball game, we're all in this together.

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Tag: Supreme Court

Do we care about being fair?

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.

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.

Format ImagePosted on October 9, 2020October 8, 2020Author Jeremy CostinCategories NationalTags David Heller, Judaism, justice, law, Mishnah, Supreme Court, Uber

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.

Posted on August 25, 2017August 22, 2017Author Department of Justice CanadaCategories LocalTags British Columbia, law, Supreme Court, Warren Milman

Compassion in the face of death

Last week, the Supreme Court of Canada unanimously struck down the law that makes it illegal for doctors in Canada to provide medical assistance to severely ill patients who wish to die.

The court decision permits physicians to assist in the suicide of “a competent adult person who clearly consents to the termination of life and has a grievous and irremediable medical condition, including an illness, disease or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

The decision reflects a fundamental shift in societal opinions toward end-of-life issues. It is worth noting, at this point, that attitudes toward death, life and intervention have never been static. As medical technologies advanced in recent decades, some (primarily religious) voices argued that these technologies interfere with the will of God by “artificially” extending life. Now, the reverse is apparently true. It tends to be religious voices today arguing that, in some cases, the withdrawal of life-extending technologies and treatments is akin to exercising the prerogatives of the Divine in ending life.

Whatever moral concerns surround this serious issue, an understandable dissonance has affected Canadians’ attitudes: it has been noted that there are times when we force human beings to endure suffering at the end of life beyond what we would permit our pet animals to experience.

Many Canadians who have watched loved ones suffer excruciating and slow illness and deaths recognize that human suffering could be more compassionately ameliorated. Among the first steps should be the provision of the best palliative care available. When absolutely no better option exists, assisted death may be the best choice for some individuals. Most of us can see this. We may wish it weren’t so and, of course, we hope we and our loved ones are never faced with these decisions. The fact is, many of us will.

Yet, every instance in which an individual, their family and doctor make decisions about end-of-life preparations must be entirely individualized. There is absolutely no way that one can apply the same criteria to two cases. Circumstances are not transferable between diseases, patients, families or belief systems. Two people with identical conditions and prognoses may justifiably choose diametrical endings.

Indeed, we must ensure that assisted death does not become a go-to “solution” when alternatives exist, or that any patient feels the slightest pressure to choose it. There is a real danger that some people will weigh decisions not on what is best for themselves but what they perceive as best for others or based on what others in similar situations have done. Not wanting to be a “burden” should not be a legitimate justification for assisted death.

There is genuine and justifiable fear around the potential for a “slippery slope.” It is important to note that this Supreme Court decision deals

with the rights of an individual of sound mind to make a decision on their own in consultation with those they trust to end a life of suffering dominated by unbearable pain and the absence of hope for recovery.

Euthanasia is an entirely different matter. It does not involve an individual’s free and informed choice. The fear is that the acceptance of assisted death will make our society more amenable to – or at least less vigilant against – euthanasia. This is not a consideration to be dismissed. The sanctity of human life is too great to ignore the fact that human beings have the capability of justification for all sorts of things. So, as Canada engages in discussions about this ruling, we should also be vigilant in reasserting our fundamental beliefs that the value of life is not diminished by the legalization of assisted suicide, but rather our humanity and the right of all Canadians to a decent life and a respectful death is part of a worldview that is life-affirming.

Certainly there is nothing happy about this subject, but if this decision makes the end of life more bearable for some Canadians then it should be welcomed. Safeguards are absolutely crucial and, as a society, as families and as individuals, we must discuss and understand the limits and potential misuses of this new freedom.

It is so important that we as a society get this right. The federal government will address this issue in the coming months. The Supreme Court has spoken, as often happens in this country, leading legislators in social progress. It’s our turn now. Canadians should have a long, thoughtful and nuanced discussion on this topic.

 

Posted on February 13, 2015February 12, 2015Author The Editorial BoardCategories From the JITags assisted death, assisted suicide, Supreme Court
תעלומה סביב הלוטו הכרטיס

תעלומה סביב הלוטו הכרטיס

image - dec 23 interesting in the news - mystery around $52 million Lotto Max winning ticket, Bank of Canada on Bitcoin, Jordan Axani picks an Elizabeth Gallagher

Format ImagePosted on December 23, 2014December 22, 2014Author Roni RachmaniCategories עניין בחדשותTags Bank of Canada, BC Lottery Corporation, Bitcoin, Dalbir Sidhu, Elizabeth Gallagher, Gayleen Elliott, Jordan Axani, lottery, Supreme Court, אליזבט גלאגר, בבנק המרכזי של קנדה, ביטקוין קנדי, ג'ורדון אקסני, גיילין אליוט, דלביר סידו, הלוטו, לבית המשפט העליון
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