Dragan Djuric, a Kansan is appealing a $275 fine imposed on him for beating a seagull with a stick. Mr. Djuric claims that he was acting in self-defense as the bird flew in to snatch his wife’s ice cream.

The fine in question was for violating the Migratory Bird Treaty Act. The intent of the 1918 act, according to the U.S. Fish and Wildlife Service website, was to, “put an end to the commercial trade in birds and their feathers that, by the early years of the 20th century, had wreaked havoc on the populations of many native bird species.” The Act itself states “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess… “these special birds. The penalties for committing such egregious actions (hitting a seagull with a stick) is a misdemeanor and up to $15,000 in fines or six months in prison or both.

Contrary to what Mr. Djuric states, witnesses claim his stick-flailing maelstrom descended upon the bird after the ice cream plopped to the ground and 10-second rule expired.

Had Djuric properly identified the species of the bird and consulted his list of birds protected under the Migratory Bird Treaty Act, perhaps he would have thought twice and bought his wife a new ice cream cone. Kansan seagull feather purchasers have yet to be identified.

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Continuing on with the cigarette related articles posted some time ago, we will tell you about one more Act that exists and is valid in Canada - the Tobacco Damages and Health Care Costs Recovery Act.

Canada is not only one of the leading countries in prohibition of the smoking advertising, but is also a huge advocate  of the second part of the tobacco problem - the health of the Canadian citizens. They are protected by the Tobacco Damages and Health Care Costs Recovery Act, which allows the government and lawyer to sue tobacco companies for breach of duty to recover costs on the health care system for people suffering from tobacco related illnesses. This act was found constitutionally valid in the Supreme Court of Canada decision on the British Columbia v. Imperial Tobacco Canada Ltd. case in 2005. This historic case had its first turning point on June 5, 2003 when the Supreme Court of British Columbia found that the Tobacco Damages and Health Care Costs Recovery Act violates the territorial limits of provincial law and was unconstitutional. The decision was overturned in May 2004 be the Court Of Appeal, on the basis that the pith and substance, ie. the dominant characteristic, of the canadian law fell under the property and civil rights provision of the Constitution Act, 1867. Imperial Tobacco continued the struggle and on June 22, 2004 the company appealed to Supreme Court of Canada. They were supported by four other tobacco companies and the Canadian Tobacco Manufacturers’ Council. The Supreme Court of Canada agreed to hear the case.

The Supreme Court reviewed three main issues:

   1. Is the Act ultra vires the province by reason of extraterritoriality?

   2. Is the Act constitutionally invalid as being inconsistent with judicial independence?

   3. Is the Act constitutionally invalid for violating the rule of law?

The answer for all the three was negative and on September 29, 2005, the Supreme Court of Canada upheld the decision of the Court of Appeal. The Tobacco companies clamed that the Act was retrospective and retroactive and violated the rule of law by creating an unfair trial. They also felt that legislation should neither target a particular sector nor confer special privileges on the government. The Constitution protects the rule of law and so it does not require that Act ensures a fair civil trial or avoids giving the government advantages. The Supreme Court found this conception amorphous and claimed that accepting it would render several more narrowly formulated provisions of the Charter redundant. The Court dismissed the suggestion that a shift in burden to the accused or the unconventional rules of procedure and evidence created by the Act will have any effect on Judicial independence. The Head of Supreme Court found that pith and substance of the Act was within the authority of the province under section 92(13) of the Constitution Act, 1867. The subject of the Act, compensation for health costs, and the effect, suing companies who harmed those in the province, must be under the regulation of the provincial law.  So find a lawyer for you if you require compensation for health costs.

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A recent ruling from the 9^th U.S. Circuit Court of Appeals found Glock and a Seattle-based gun dealer not liable for a shooting that occurred nearly ten years ago. Citing a federal law from 2005, the Protection of Lawful Commerce in Arms Act, that prohibits lawsuits against gun manufacturers, the panel ruled 2 to 1 in favor of Glock.

The case in question is a civil suit brought by victims and family members affected by Buford Furrow’s 1999 race-fueled shooting. Three children, a teen and two adults were wounded or killed during the onslaught. Furrow is serving five life sentences.

This ruling is important because it sets precedent that the law enacted in 2005 is constitutional. As long as a gun company has the proper licensing- albeit state or federal or both- they are protected from civil lawsuits.

The 2005 Protection Act was enacted partly in response to an earlier ruling on the Glock case in 2003 where an appeals court ruled that the company could be sued “on the common-law claims of creation of a public nuisance and marketing negligence.” Lawyers for the plaintiff asserted that Glock’s marketing campaign targeted illegal purchasers (the classic ‘If he took his meds, give him a gun for Christmas’ campaign.)

Sayre Weaver, a lawyer for the plaintiff calls the Protection Act “special interest legislation” continuing with “The law takes tort victims who have claims under state law and says ‘You’re just like every other tort victims but you can’t sue this group of defendants.’ It’s Congress saying, ‘Because it happens your claims are against a gun manufacturer, you’re out of court, you’re out of luck.’ That’s a very scary thing.”

As scary as it may be what exactly can gun company’s do to prevent psychos from using their products to kill others. Buford, the man in question, was a law-abiding citizen for most of his life with plenty of opportunity to legally purchase firearms. Yes, he was a racist who went nuts and killed people, but this seems more like the exception to the rule than the rule itself. I cannot fathom what Glock could have done differently (short of closing down and recalling all its products) to prevent the tragic events that took place in 1999.

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Law offices vary in size from single lawyer firms to large, multinational entities. To understand how an office is typically setup the surrounding climates must be taken into consideration. Smaller firms tend to be more specialized to a certain branch of law. Larger firms with huge stores of experienced attorneys are able to take on a broader variety of cases, knowing that someone amongst their ranks can handle the case.

Specialization. The firm’s ability to handle different types of cases can grow as the firm expands. In a small firm with a handful of lawyers, they focus on one or two specific types of law like family, bankruptcy or negligence and build a clientele in these areas. Branching out to litigate other sorts of cases lessens the quality of service at this level so being specific ensures a good reputation.

Partnership. Partnerships tend to range from two lawyers to a few dozen. In this structure, partners work together to determine fees, strategies, advertising, and hiring practices the firm should pursue. As a firm grows, the tendency grows for more specialization within the firm or a more “corporate” framework. Having someone specifically for certain tasks or establishing a hierarchy of partners avoids the “too many cooks spoil the broth” scenario.

Expansion of the firm is not always the desired path either. Some partnerships may prefer to remain small. Partners may feel that a less strenuous workweek is more beneficial than a more lucrative caseload (hopefully, these two are not mutually exclusive). They may want their firm to emit an air of friendliness that a $4 million office building could not deliver.

Economic downturns force firms to reevaluate the way they do business. Firms deeply rooted in old ways of doing business are transitioning to systems that reward performance over seniority. There is a push to setup “rainy day” funds in firms to avoid losing their hat during a recession. Mitch Kowalski discusses this in “Law firm structures - a blast from the past”. In response to the fluctuating revenue streams firms face and the catastrophic implications this bodes during an economic slowdown, Kowalski contends, “the businesses that are able to weather this current recession and actually thrive in it, are those that have huge hoards of cash that they diligently put away each year.”

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We’re all familiar with medical malpractice in the common sense where an impetuous surgeon misplaces a scalpel or two inside a patient’s chest cavity… but what about pets? As it turns out, more and more cases are surfacing involving the death of a pet due to veterinary malpractice.

Historically, the value of an animal was limited to its economic value. The intent leaned more towards farmers who, if disenfranchised by the loss of livestock, would be awarded the market value of that animal. This of course forgoes any consideration for the connection between an owner and their furry friend, which is evident when what the owner spends to save their animal exceeds the pet’s “market value”. For instance, a pet owner who funds a $50,000 surgery to have a cancerous tumor removed from their cat when the cat’s market value is fourteen dollars.

Some believe that Canada is right for not putting a price tag on the emotional distress caused by losing an animal to veterinary malpractice. The high price of a vet visit would only increase after malpractice insurance rates grow due to larger settlement amounts. This seems justified by what has happened with healthcare in the United States. But is it right for the whole to save a few dollars when a few have legitimate claims to bigger settlements?

California doesn’t think so. The USA Today mentions the saga of a dog owner’s lawyer who fought for and received $30,000 for the dog’s “unique value” in addition to the costs associated with the surgery. They go on to mention a similar case out of Kentucky where the court awarded a pet owner $15,000 for their dead German shepherd.

The common law opinion that animals are merely property is perceived more and more as defunct. Tort suits in the US where pet owners receive monies beyond the scope of their animal’s economic value are becoming more prevalent and it may only be a matter of time before Canada follows suit.

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A Toronto woman convicted of growing marijuana in her suburban home is a breath of fresh air for Ottawa police. The court sentenced Trang Nguyen, the homeowner, to nine months in jail and sentenced the “gardener” to a year.

This is the first Ottawa conviction of an absentee homeowner with a marijuana cultivation operating out of their home. This tactic, used by organized crime, of separating homeowners from the illegal activities going on in their homes is a way of distancing the owners and making the drug problem that much more difficult to quell.

Staff Sgt. Pete Gauthier, of the Ottawa police drug unit stated, “This was a first.” Continuing with, “We haven’t been able to do that in the past, because the person doesn’t go to the house.”

Ottawa police Chief Vern White

The police hope the courts ruling will send a message to other grow operations in the area.

In April, the Supreme Court of Canada refused to hear a case regarding the cultivation of marijuana. As it stood, Health Canada received its crop from a mine in Manitoba and limited commercial growers to one patient at a time. Authorized patients are allowed to grow their own “medicine” as well.

Times change and it appears that marijuana may soon become more socially accepted. A recent field poll reports 56% of Californians favor legalizing marijuana for recreational use. This includes non-medicinal sales that they project will generate $1.2 billion in direct tax revenue for the state. Unfortunately for them, to tax marijuana, it must be federally legal, which many agree, may never happen or if it does, will not happen for quite awhile.

Hypotheticals aside, the Crown scored a victory with this decision. After hearing the news, police remarked that now they will focus more attention on catching absentee homeowners with grow-ops and bringing them to justice. Whatever justice that may be at the time.

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The ACLU is in court with the U.S. Patent Office and Myriad Genetics over the validity of patents Myriad acquired for the genes BRCA1 and BRCA2. Mutations of these genes are connected to breast and ovarian cancer.

gene patenting

In a press release, the ACLU state, “The patents granted to Myriad give the company the exclusive right to perform diagnostic tests on the BRCA1 and BRCA2 genes and to prevent any researcher from even looking at the genes without first getting permission from Myriad.” ACLU lawyers claim that Myriad’s patents hamper clinical diagnosis and research on the cancer causing mutations.

Robert Cook-Deegan, a director at Duke University’s Institute of Genome Sciences and Policy states, “If the ACLU wins, it will be game changing in terms of how patents are granted for genetic testing. I really have no feel for how the courts will handle this.”

The plan is to make a judge decide if naturally occurring genes can be patented.

The Supreme Court’s decision in the 1980 case of Diamond V. Chakrabarty states, “A live, human-made micro-organism is patentable subject matter under [Title 35 U.S.C.] 101. Respondent’s micro-organism constitutes a “manufacture” or “composition of matter” within that statute.” One of the distinctive differences between the gene patenting case and this is that the bacteria in question were not naturally occurring like Myriad’s patented genes. Even so, this established that living things could in fact be patented.

The cost of the test for these genes is another driving force behind the suit. Patients with a family history of breast cancer are balking at the $3,000 test to see if their BRCA1 & 2 genes have mutated cancerously. The plaintiff claims the price of these tests would decrease if more companies were allowed to perform them. This would also give patients to get multiple tests from different sources.

The United States is not alone in gene patenting. The Canadian Intellectual Property Office issued over two thousand patents for genes or nucleic acid sequences during the twenty-year period between 1980 and 2002. For a more in-depth look at the debate over gene patenting go here.

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When in business, developing goodwill is one of the most difficult (and necessary) tasks. Business goodwill is the value of the business over the net assets or book value. This includes the brand name, customer relationships, reputations and other intangibles, which are all fundamental components of business success. Franchising, for instance takes advantage of the built-in goodwill a large company has established.

Now that we have an idea of what goodwill is… what is it? Well, it depends. Sometimes, it is the intangible value of a service or product. Sometimes goodwill is the intangible value of a business (the name, reputation). Goodwill can also be the intangible value of the members of the business. For example, Dan graduates and he partners with his classmate, Steve to start their own dental practice. It takes a few years, but eventually Dan & Steve’s Teeth Shop develops a following of loyal customers. All is going well until one day, Steve has an affair with Dan’s wife and Dan wants him gone. Steve doesn’t mind, but demands to be bought out of his half of the partnership. This is where goodwill comes in.

Since Dan has three patients for every patient Steve has, he might refuse Steve’s asking price on the basis that he (Dan) is more responsible for the success of the business and entitled to a bigger slice of the goodwill. Steve could argue that the goodwill is in the Teeth Shop brand name or that even though Dan works on more patients, he is clearly more responsible for the businesses success because he (Steve) came up with the catch phrase on the television commercials and built name recognition with his billboard idea. Meanwhile, Mrs. Dan decides to file for divorce under the pretense of abuse (Dan hit her with a rake, forcing her into the arms of another man). She wants a piece of Dan’s business and of course, some goodwill. So, how much money should she get? It depends.

As always, in any legal situation, consulting with a lawyer is recommended  Most Canadian lawyers offer a free initial consultation and can advise you on your position on a goodwill dispute.

There are a couple ways to value goodwill- the market share method and the capitalization of excess earnings method. Market share, is what a willing buyer would pay for the business right now (what the business is worth plus goodwill). The capitalization of excess earnings method capitalizes excess earnings or the additional earnings beyond a “reasonable return” on the physical assets and the salary a similar professional could command in the same market for the same service.

Goodwill is difficult to quantify, because it is intangible. We know it’s “there” but putting accurate numbers to it is a challenge and eventually it comes down to what everyone can agree upon.  In the example, if Steve and Dan agree on a 45/55 split they are right. If they agree upon a 30/70 split, they are also right. If an appraiser finds the business to have $30,000 in goodwill using the market method she is as right as an appraiser that finds the business to have $25,000 in goodwill using the capitalization of excess earnings method. It comes down to what everyone can agree on.

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As we age the things that affect our lives change and for the elderly, there are whole practices based on protecting them against abuse and exploitation and helping them plan their remaining years. This practice is elder law and assists seniors in avoiding the pitfalls of being elderly.

One of the concerns applicable to the elderly in particular is abuse or mistreatment. A disturbing amount of mistreatment occurs, albeit in long-term care facilities or from trusted family members. It can come in a variety of forms from psychological and physical to financial and sexual or rights violations and neglect. These abuses tend to originate from someone the senior trusts or depends on like staff members at a care giving facility or family which makes the crime all that more devious in nature. In response to such actions, people across Ontario formed Elder Abuse Networks in an attempt to put an end to these practices. To read more about elder abuse read here and visit the Advocacy Centre for the Elderly’s website. Both explain the abuse issues thoroughly, offer telltale signs of abuse and guidelines for what actions to take.  Also visit www.lawyerahead.ca to find lawyer that practice elder law.  Many lawyers offer 30 minute free consultation. consult a canadian lawyer and find out how she or he will be able to help.

A less dramatic portion of elder law concerns estate planning. Perhaps a need has arisen from an unexpected decade of additional life that requires a will be modified. Long-term care facilities are costly and will revision may be necessary to maintain homeostasis. Consulting a lawyer with your estate needs can prove fruitful. They may recommend a senior have his or her capacity checked and verified at the time of modification, which will pay off later during probate.

Another issue that comes into play as we age is the ability to drive. Although it is a privilege, many associate holding a license and driving with their sense of independence. According to The Law Commission of Ontario, “Ontario’s Senior Driver Renewal Program requires drivers aged 80 years and over to take part every two years in a group education session and to complete vision and knowledge tests. Based on individual assessment, some drivers may also be asked to take a road test to have their in-car skills assessed. Some have suggested that older drivers should be required to take a regular road test, while others have argued that age by itself is not an appropriate indicator or driving skills, and that either all drivers should be regularly re-tested, or that re-testing should be based on specific functional indicators.” Many feel this program is unfair and targets seniors while others think it’s not enough or the age should be lowered from 80 to 70 or lower.

These are only three of the categories addressed under the umbrella of elder law. Other issues pertaining to seniors include advance directives, assisted living facilities and retirement homes (planning, financing, etc), assisted suicide, pension plan, and others. A good place to read more about Elder law is at Canadian Elder Law and for more in-depth explanations on rights or courses of actions consult an experienced lawyer.

Termination can come as a shock to employees who believe they have served their employer proudly for years. In the current recession, many workers are being laid off or fired, some with warning, and others with little notice. Corporate has continually surprised many and the recently fired should know their rights.

Notice. The Employment Standards Act (ESA) of 2000 mandates that employers give notice to employees of their impending termination. The amount of termination pay depends on the length of employment and how many employees have been terminated in that 4-week period. In some cases, written notice will suffice. In other cases, either pay without notice or pay and written notice is required. During the time period between notice is given and the employee is actually no longer there, the employer is required to not alter their salary and continue to contribute to any benefits package the employee holds.

Bankruptcy. Non-union employees out of a job because their employers filed for bankruptcy do have recourse. Under the new Wage Earner Protection Program (WEPP), disenfranchised workers can file a claim for the wages their employer owes them. The worker is required to file a claim within 56 days of the date of the bankruptcy/receivership and it had to have taken place after July 7, 2008. Union workers should get in contact with their union representatives for assistance. Call 1-800-683-6516 to contact the Wage Earner Protection Program Call Center.

Discussing your options with a lawyer is always a wise choice.  Canadian lawyer has experience dealing with employment labour laws in Canada and can discuss with you your options and rights.

The Federal law regarding monies bankrupt companies owe their employees is the Bankruptcy and Insolvency Act and regards these employees as creditors. Non-union workers are encouraged to contact the Ontario Ministry of Labour with the names of the company Trustee/Receiver(s). The ministry will assist ex-employees in preparing the appropriate forms for submittal to the Trustee/Receiver. Call 1-800-622-6232 for more information on the Bankruptcy and Insolvency Act.

Recall Rights. The Ministry of Labour defines recall rights as the “right of an employee on a layoff to be called back to work by his or her employer under a term or condition of employment. This right is commonly found in a collective agreement.” If the employee has been laid off for 35 weeks or entitled to termination pay, they must choose between keeping their recall rights and termination pay.

For more employee rights information, look at the Ministry of Labour website.

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