Omar Othman, also known as Abu Qatada, lives in England and acts as a radical Islamic preacher.  He is regarded by the Government of the United Kingdom as an exceptionally high risk terrorist. 

He was born in 1960 near Bethlehem, then administered as a part of the Kingdom of Jordan.  He left Jordan for Pakistan sometime later and arrived in England in September 1993, applying for refugee status on the basis that he had been arrested and tortured by the Jordanian authorities two years before.  He was recognized as a refugee in 1994 and granted permission to remain in England until 1998.  At that time he applied for indefinite leave to stay.  He was arrested in October 2002 by which time his application had still not been determined.  He was arrested under the authority of a UK statute called the Anti Terrorism Crime and Security Act 2001.  In 2005, the UK Secretary of State served him with a notice of intention to deport him.

In April, 1990, Othman had been convicted in Jordan in absentia of conspiracy to cause explosions.  The conspiracy related to bombings in Jordan in which the AmericanSchool and the Jerusalem Hotel in Amman had been attacked in 1998.  He had been sentenced to life imprisonment. 

He was again tried in Jordan in absentia in 2000 for being part of a conspiracy to cause explosions at Western and Israeli targets in Jordan to coincide with the millennium celebrations.  The conspiracy was uncovered before the attacks could be carried out.  He was convicted and sentenced to 15 years in prison.

As part of a negotiation in 2005 between Jordan and the United Kingdom relating to the deportation of terrorist suspects to Jordan, a Memorandum of Understanding was signed between the two countries setting out a series of assurances of compliance with international human rights standards which would be adhered to in the event that the UK deported anyone to Jordan.  The Jordanian government also issued a side letter giving assurances that the death penalty would not be imposed in the event of a conviction of such a person.

The day after the Memorandum of Understanding was signed, the UK Secretary of State began the deportation proceedings against Othman.  Othman appealed to the Special Immigration Appeals Commission arguing that if he returned to Jordan, he would be retried and there was a real risk that evidence obtained by torture, either of him or co-defendants, would be admitted into evidence against him. 

The SIAC agreed with him and ruled that his deportation would violate the European Convention on Human Rights provision that states that everyone is entitled to a fair hearing by an independent and impartial tribunal established by law.

The UK government appealed to the Court of Appeal. 

Incredibly, the appeal was dismissed.

The Court pointed out that only rarely will a state be prevented from deporting people to face trial in another country.  The fact that there is a risk that the accused will not have a fair trial is not enough.  There must be a real risk of a flagrant denial of justice.  Accordingly, a person cannot be deported where there is a real risk that he will be tried on the basis of evidence that may have been obtained by torture.

The Court of Appeal reviewed the facts of the case and the decision of the SIAC with great care.  It considered the Memorandum of Understanding and the fact that any new trial in Jordan would involve independent and impartial judges.

On the question of the likelihood that evidence obtained by torture might be used against Othman, the Court seemed to agree that the onus was on the prosecution to demonstrate either that no evidence (possibly) obtained by torture would be used, or that if such evidence was to be used, it would not likely form an important part of the prosecution’s case in Jordan.  The Court accepted that it was not Othman’s responsibility to demonstrate that this was going to happen, but rather the prosecution’s responsibility to demonstrate that this would not happen.  In this case, the statements in question were extracted, properly or otherwise, from alleged co-conspirators about 14 years earlier.  How the prosecution could possibly have been expected to discharge this type of onus was not discussed in the case.

The court recognized that Othman is a truly dangerous person.  He has been living in the UK and functioning as a radical Islamic preacher.  He has been described as a senior operative of Al-Qaeda.  However, as far as the Court was concerned, “The fact that Mr. Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal”. 

There is something wrong with this.

In a number of earlier posts I have commented on the ability of the court, at least in this jurisdiction, to deliver a practical and common sense result notwithstanding technical arguments that would suggest otherwise.  This case does not appear to be such an instance.  In this case the UK Court of Appeal seems to have decided to extend a measure of tolerance and compassion to an individual whose cause is quite clearly intolerant and totally lacking in compassion. As a result, the Western world and specifically the population of the UK will continue to be burdened by Othman for the foreseeable future.

The UK government has undertaken to seek leave to appeal, and perhaps obtain further assurance from the Jordanian government as to the treatment that Othman might expect to receive in the event of a deportation.  Let’s all hope for a better result next time.

The recent case of Fernandes v. Penncorp Life Insurance Company provides useful and interesting insights into the obligations of insurers to pay up under disability insurance policies, and the consequences of any failure to act reasonably in dealing with disability insurance claims.

The Plaintiff was an immigrant to Canada with limited education and limited intellectual capability.  He obtained employment as a bricklayer, ten to twelve hours per day for six or seven days per week for many years.  The work was very demanding physically, requiring strength and endurance.  In December, 2004, he fell from a scaffold from a height of about eight feet.  He was badly injured to the extent that he could not return to work.

If common care and prudence would require an insured from working at his business or occupation in order to recuperate or prolong his life, he will be considered to be totally disabled within the meaning of an insurance policy.

He made a claim under his disability insurance policy.  The insurer, Penncorp, refused to pay and the Plaintiff sued.

The Plaintiff’s policy entitled him to benefits for two years if he was unable to work at his own occupation and further benefits thereafter if he was disabled from working at any occupation for which he was reasonably suited by education, training or experience.  In this case, Penncorp agreed that for the first two years following the Plaintiff’s injury he was unable to work as a bricklayer and paid him for the two years.  It refused to pay any further.

Penncorp made its decision to stop paying on the basis that after two years, the Plaintiff was now capable of doing other work.  It appears from the case that Penncorp relied primarily on surveillance video tape obtained by its investigators.  Between August, 2005 and February, 2010, the investigators conducted surveillance on nineteen different days showing the Plaintiff performing such activities as lifting a wheelbarrow in and out of a truck, shovelling earth in and out of a wheelbarrow, and carrying boxes out of a house.  As far as Penncorp was concerned, this was an indication that the Plaintiff was not totally disabled within the meaning of the policy.  Continue reading →

With apologies to Mark Twain for the mangling of his famous quote, fans of specific performance may be cheered by the very recent decision of the Court of Appeal in Maraschiello v. Shellrock Developments Ltd.

For the uninitiated, specific performance is an Order granted by a Court requiring the party in breach of obligations under a contract to perform those obligations.

In this case, the plaintiffs sold their farm, where they had lived and worked since 1978, to Shellrock.  The terms of the agreement included an obligation on Shellrock to use best efforts within 12 months after the May 2004 closing date to obtain a severance of a 1 acre parcel of the property on which the plaintiffs’ house was located.  The intention was that the plaintiffs would continue to own and live in their house.

Shellrock failed to obtain the severance and the plaintiffs sued for specific performance, alleging that Shellrock had failed to use best efforts to obtain the severance.  The plaintiffs maintained that had Shellrock made best efforts, or in fact any reasonable effort, it is very likely that severance would have been obtained.  Continue reading →

The area around Georgian Bay between Wasaga Beach and Meaford contains many interesting features.  The beaches along Georgian Bay, the private ski clubs in the area, the pedestrian village of Blue Mountain, a lengthy cycling trail, and beautiful golf courses are only some of the many wonderful recreational features of the area.  As idyllic as it may sound, however, weird things happen in that neighbourhood as evidenced by the recent Court of Appeal decision in a case between the Town of Meaford and a group of home and cottage owners along Georgian Bay and the Meaford area.

In this case, to quote the Court, the Town of Meaford quite literally “found a by-law in a box in its basement”.  I am not kidding.  The by-law was passed in August 1854 by the municipal council in place at the time.  It was entitled By-law No. 11 for 1854 and established a lakeshore road along 4 adjoining lots.  The road surface would have covered about 6,000 feet abutting Georgian Bay.

The by-law was never registered on title.  Rather, it was lost to history for about 150 years.  In fact, the road surface was largely lost to Georgian Bay when the area was washed out in a storm in 1986.  Continue reading →

Many years ago, I acted for a client who was in the business of running junkets to gambling destinations in the Caribbean. He was quite a gambler himself and managed to rack up a significant debt at a Puerto Rico casino which he neglected to pay. The casino sued him in Ontario, and he retained me to defend him.

I did come up with a number of arguments for setoffs based on his business relationship with the casino concerning the planeloads of gamblers he was bringing in, but I was intrigued by the fact that there did not seem to be very much of a defence to the casino’s claim against him for his gambling debt.

From time to time, someone comes up with an interesting defence to an action to collect gambling debts. The latest effort was put forward in a case recently decided by the Court of Appeal called Moreira et al. v. Ontario Lottery and Gaming Commission et al.

In this case, the Plaintiffs were high stakes gamblers who had lost over $2 million playing roulette at the Niagara Fallsview Casino Resort over a span of about 3 ½ years. During that time, they signed markers to the casino. When the casino demanded payment on the markers, the Plaintiffs sued first and demanded the return of all of the money that they had lost.  Continue reading →

I recently submitted a paper entitled “The Role of Anger in Mediation” for the Masters course I’m taking at Osgoode Hall Law School in ADR. The paper was well received, and I am in the process of trying to have it published. It is fairly lengthy, but it may be of interest to anyone who participates in mediations, either as a party, as counsel or as mediator. I attach a copy on the link below.

The Role of Anger in Mediation

In an action against a company whose financial status is questionable, it is common to consider whether or not it might be possible to sue an individual representative of the company, such as its owner or president, in the hope that if a judgment is not enforceable against the company, it might be enforceable against the individual.  Sometimes, such an action is brought as a tactical step, intended to intimidate or unsettle the company’s decision-maker into a quick settlement.

The law is very clear on the point.  As a general rule, an individual representative of a corporate entity will not be liable for wrongful conduct unless it can be established that the individual committed what the cases refer to as an “independent tort”.  In other words, the alleged wrongful conduct on the part of the individual has to be independent from the tort or breach of contract allegedly committed by the company.  Otherwise, and if the individual was simply making decisions on behalf of the company, there is no personal liability.

An interesting twist on the point arose on the facts of a recent Court of Appeal decision, Richards v. Media Experts M.H.S. Inc. and Mark Sherman.

In that case, Ms. Richards sued her former employer, Media Experts, for damages for wrongful dismissal.  She also sued Mr. Sherman, the executive chairman of Media Experts, for damages for the torts of intentional and negligent infliction of nervous shock.  The alleged shock arose out of the act of termination.

The courts have become very sensitive to any attempt to fix liability on an individual where the claim against his company is problematic.

Mr. Sherman brought a motion to have the claim dismissed as against him, and succeeded.  The motion judge noted that the Plaintiff’s employment contract contained a clause limiting the company’s liability for wrongful dismissal to compensation equal to 12 months’ pay.  The judge went on to conclude that to permit a claim to proceed against Mr. Sherman would allow the Plaintiff to circumvent that clause, by obtaining compensation over and above the contract amount.

Continue reading →