Monday, March 30, 2009

Fun with QuickLaw: dashing leading man edition

I don't know what possessed me to type "George Clooney" into QuickLaw. I was getting frustrated -- "river of blood", "Twitter" and "the original smoking gun case" had all produced nothing. (The last one was a long shot, but wouldn't that have been awesome? Yes it would have been awesome.) Typing "Easter bunny" had, improbably, produced a depressing account of infant death. My God, "Fun with QuickLaw" is about laughing at the ignorant, not gawking at tragedy! Decorum, if you please.

Sexy pediatrician Dr. Doug Ross saved the day.1 Maybe it's because Three Kings was on TV on the weekend, neutered of swear words and violence. Maybe the mind just settles on George Clooney like a weary salesman curls up next to his sleeping spouse.

It so happens that swear words, violence and George Clooney's tidal magnetism are some of the factors threatening the proper upbringing of young Brandon Scalisi, according to his parents' custody battle, Peterson v. Scalisi, [2001] O.J. No. 2774.

Custody disputes arise frequently in "Fun with QuickLaw". Judges in such disputes are called upon to compare the parties' worth, sight-unseen. For lack of a better yardstick, they rely upon quotidian cultural signifiers -- for example, "The Sopranos", "Rob Zombie" or "nachos for breakfast"; all viable candidates for future "FwQL" segments, all appearing in the case at hand. But we get ahead of ourselves!

Meet the Scalisi family: Nicole Heidi Peterson, Applicant; Michael Frank Scalisi, Respondent; and young Brandon Scalisi, Object of Dispute. According to the head note, the parents "met in a bar where the mother was working as an exotic dancer and the father was a probationary member of [the Outlaws] motorcycle gang. They had a child and agreed that the mother would quit dancing and the father would support the family. Their relationship deteriorated shortly after the child was born."

Things look grim from the outset for Ms. Peterson:

It appears that Ms. Peterson has what can best be described as a less structured parenting style than Mr. Scalisi. For example, Ms. Peterson admits that Brandon sometimes eats potato chips or nachos for breakfast when he is with her. While this may not be the worst parenting sin in the world, it would be preferable if she were to place the same emphasis on a proper breakfast as Mr. Scalisi apparently does. Particularly when Brandon starts school, his nutritional needs will become more and more important. I hope that Ms. Peterson understands the importance of diet in a child's development and that she will ensure that the consumption of potato chips for breakfast is not a regular occurrence.

Despite his apparent commitment to a healthy balanced breakfast, Mr. Scalisi is not without his own questionable childrearing practices. Judge Wildman does a masterful job not calling these people what they are -- an Artie Lange comeback vehicle, coming soon from AMC. It would write itself:

Ms. Peterson says that Mr. Scalisi passes gas in various ways without apology and is resistant to her efforts to discourage Brandon from doing the same thing. She says that Brandon learned the opening words to the theme song of the television show, "The Sopranos", while at his father's home. These words are something to the effect of "I woke up this morning and got myself a gun". Ms. Peterson says that Brandon has referred to her red pants as "Hell's Angels" pants and he has returned from his father's with temporary tattoos of swords and skulls, which are not "happy" or age appropriate. She complains that when Brandon had his hair cut like "George Clooney", Mr. Scalisi referred to the actor as a "fruitcake". She objects to Mr. Scalisi's habit of name-calling, although thankfully it is no longer directed at her.

... [Mr. Scalisi] admits that he does use names such as "Fruitcake" and "Bananahead" but he feels these are appropriate to ensure that Brandon does not get in the habit of using stronger, less acceptable expressions.

So you see, using a mild homophobic slur will teach Brandon that more severe homophobic slurs are improper. I am once more reminded of Three Kings, when Mark Wahlberg and Ice Cube teach Spike Jonze that "dune c---" and "sand n-----" should be foregone in favour of acceptable substitutes like "towel head" and "camel jockey".

Mr. Scalisi counters that Brandon once arrived at his home with a friend's Rob Zombie CD, the liner notes of which contained "violent, sexual and satanic images". Confronted with the CD at trial, Ms. Peterson at first maintains that there is nothing wrong with her son having it ... presumably until her counsel's eyebrows fall off his face and his teeth shatter, whereupon she acknowledges that it might be inappropriate for a young child.

Wildman J. is not overly troubled by the fact that Brandon is still listening to Rob Zombie in 2001, a full three years after Hellbilly Deluxe.2 Consider, however, that as of the date of ruling, Brandon was three years old.

Remember from The Sopranos when Ralphie Cifaretto beat that stripper to death in the parking lot? And then Tony and Christopher end up cutting Ralph's head off and burying him in pieces all over rural New Jersey?

Three years old. Anyway.

I can't help but presume that by 2009, young Brandon must resemble Little Larry Sellers from The Big Lebowski.What gives Wildman J. pause is Brandon's mother's part-time employment as an exotic dancer, and her contention that her work "will never affect Brandon as he will never know":

I am not sure that this is a realistic expectation. Ms. Peterson should accept the possibility that her son may learn about her dancing, either through someone in Barrie or through cousins, other family members or friends. It may not be in Brandon's best interests to feel his mother has hidden this aspect of her life from him. While her job certainly does not mean she is a bad mother, there is some social stigma attached to it. It seems to me that the fact that Ms. Peterson chose to hide her employment, first from her parents and now from her son, is a tacit acknowledgment of this. Even if Ms. Peterson really believes that there is nothing improper about her continuing to dance, it would be appropriate for her to have some plan to deal with Brandon's questions should he become aware of her job. Her flat denial that this will ever be an issue concerns me.

Wildman J.'s treatment of Mr. Scalisi's nefarious history with the Outlaws biker gang is worth reproducing in its entirety:

Mr. Scalisi has admitted that he has a problem with some members of the police force and one officer in particular. Mr. Scalisi had his arm broken in an altercation with this officer. Mr. Scalisi was charged but subsequently acquitted of assault involving this officer. He considered pursuing a lawsuit or disciplinary action against him. He elected not to do so as he had some concerns about the likelihood of successfully obtaining relief against a member of the police force.

Despite his experience with this officer, he says he has told Brandon to trust the police and that the police are there to help him. He denies that he told Brandon that the police were the "bad guys". He was frank that, in his view, there are good officers and others who are not as good. He felt that each should be judged individually. However, he seems to understand that Brandon is too young to appreciate this concept and I am satisfied that he is making an effort not to convey his own mixed emotions about the police to his son. I am not satisfied on the evidence before me that there is a concern that Mr. Scalisi will instill any disrespect for the law in Brandon.

Mr. Scalisi has no criminal record. I heard no evidence to suggest that he is racist. He is no longer a member of the Outlaws, he has sold his motorcycle. Although he still knows some of his former club members, I accept that they are not a significant presence in his life now. Ms. Peterson did not really have anything other than her own suspicions to suggest that he might maintain ties with the motorcycle club. She admits that she does not think he is a "patch holder" and she does not really know what he does now.

An unexpected moment of levity (no one is going to accuse Tha Wild Man of not enjoying his work):
Both parents exposed Brandon to the existence of the Outlaws when he was young. Apparently Baby Gap and Baby Roots have not cornered the market on the extension of commercialism to infants. The Outlaws have baby gear available for members' children as well as a stuffed animal, which appears to be a fluffy pig dressed in a Harley Davidson tee shirt and Outlaws hat. Brandon's doting parents got these items for their baby and there were pictures entered into evidence of him as an infant sporting this gear. Whose idea this was is unclear but I am satisfied that both parents participated as there is also a picture of Ms. Peterson at the zoo with Brandon in which she, too, is wearing a "Support your local Outlaws" tee shirt. Thankfully, Mr. Scalisi was apparently required to return all logo items to the Outlaws when he resigned. I doubt that these items would do much to enhance Brandon's attempts to develop friendships with children at school or in the neighbourhood. I am pleased to see that these inappropriate clothes and toys seem to be a thing of the past.

While Wildman J. cautions (with commendable understatement) that Ms. Peterson and Mr. Scalisi would do well to "obtain further information from parenting courses or books" as to what is age-appropriate for their son, ultimately the court is satisfied "that each parent has the ability and the motivation to properly socialize Brandon so that he will not have problems fitting into a school setting." He is confident that Brandon "will not be severely lacking in manners, social skills or moral fibre regardless of which parent is his primary caregiver." Or at least, Brandon won't be more screwed up by being placed with one parent over the other.

We can take a wealth of lessons from Peterson v. Scalisi:
  1. "Soft" slurs are appropriate for a three-year-old but the more serious stuff should be censored until he is nine or ten.
  2. I will watch Three Kings whenever it is on television.
  3. Biker > stripper
  4. If you can't laugh at a former Outlaw biker who got his arm broken in an altercation with police being the good candidate for child custody, well then, you've forgotten why you got into Family Law in the first place.

* * * * *

1Much like the time he rescued [ of] two kids trapped in a flooding aqueduct.

2Apparently there is also a 20th Century Masters compilation of Rob Zombie's most seminal works, placing him among the likes of Marvin Gaye, Styx, and the Mamas and the Papas, which, that's really weird.

Don't Mess with Texas: Lessons in U.S. Venue Selection

Q: Are you a foreign country, looking to sue an American cigarette company to recover the costs of health care for your nicotine-addled citizens? Why not try suing in the Southern District of Texas, in the court of District Judge Samuel B. Kent?
A: 'Cause there's a good chance he's going to burn you for being foreign, with the most withering sarcasm ever committed to a law report:
[G]iven the tremendous number of United States jurisdictions encompassing fascinating and exotic places, the Court can hardly imagine why the Republic of Bolivia elected to file suit in the veritable hinterlands of Brazoria County, Texas. The Court seriously doubts whether Brazoria County has ever seen a live Bolivian ... even on the Discovery Channel.

You hear that, Bolivia? Git yer ass back to whatever part of Mexico you crawled from!
[T]he Court is virtually certain that Bolivia is not within the four counties over which this Court presides, even though the words Bolivia and Brazoria are a lot alike and caused some real, initial confusion until the court conferred with its law clerks. Thus, it is readily apparent, even from an outdated globe such as that possessed by this Court, that Bolivia, a hemisphere away, ain't in south-central Texas, and that, at the very least, the District of Columbia is a more appropriate venue (though Bolivia isn't located there either.)

That'll learn ya. Now don't you show your filthy foreign face in Judge Kent's court again.

The hilarious Judge Kent is presently under indictment for alleged sexual harassment of a court clerk, who is probably not Bolivian.

Republic of Bolivia v. Philip Morris Companies, Inc., 39 F. Supp. 2d 1008 (S.D. Tex. 1999).

Wednesday, March 25, 2009

Tuesday, March 24, 2009

Proximate Cause, Negligent Misrepresentation and the Hockey Pool

Or, Do the Nashville Predators Owe Me $200?

But for the fact that the Nashville Predators have remained silent about a rumoured concussion to star forward Jason Arnott, I would still be in the running for a $200 payout in my class hockey pool. Had the Preds been forthcoming about the true nature of Arnott's injury, I would have sat him out last week, and played Toronto's Jason Blake in his place. Instead, a valuable slot on my roster sat empty, while Blake, sitting in reserve on my bench, collected the three points needed to stay my execution.

With my defeat last week, I have been relegated to playing for fifth place. In this month's 17th annual Marianas Cup Beach Volleyball Festival, placed in Saipan, the capital of the United States Commonwealth of the Northern Mariana Islands, the tying fifth place teams were awarded a $500 prize. There is no prize for fifth place in a class hockey pool.

This inequitable result should have been foreseen by the Nashville Predators organization. Listing Arnott as "day-to-day" suggested an imminent return, assuring faithful strategists like myself that keeping Arnott in the lineup would yield the sort of dividends that the big veteran had been providing all year long. Instead, Arnott has not played a game since March 10, and seems unlikely to return to action at any point in the near future.

Certainly I understand the team's reticence. Late in the year, coaches are often loath to reveal the specifics of injuries to their players, lest opponents target those weaknesses in future games. Yet necessity is no defense when the mere spectre of possible injury in the future is weighed against the certainty of harm to countless unwitting hockey enthusiasts across the continent.

Admittedly, there are some significant hurdles to be overcome in this claim. On Sunday, March 14, the Nashville Tennessean dutifully reported that Arnott was suffering from "a possible concussion, which generally keeps players out at least a week." On that day, had I read that particular publication, I could have removed Arnott from my lineup. Instead, I made the horrific discovery on Monday. Too late. The new week was underway and my lineup locked in. One might consider this failure to properly investigate to be contributory negligence on my part. Yet surely no reasonable person could be expected to dig through the local publications of every NHL city in order to formulate a winning strategy!

Unfortunately, an additional obstacle to recovery is to be found in the nature of the harm which I have suffered. My person remains intact. My physical property the same. If, in two weeks, statistics show that I would indeed have won the $200 pot, or even the $40 consolation prize, my losses will have been purely economic. The Supreme Court of Canada has recognized five categories of pure economic loss (Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85), including negligent misrepresentation, which would seem facially applicable here. (Nobody with an ounce of common sense would refer to a concussion as an "upper body injury"!) The five general requirements for imposing liability for negligent misrepresentations have been summarized by Mr. Justice Iacobbuci:
... (1) there must be a duty of care based on a "special relationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said representation; (4) the representee must have relied, in a reasonable manner, on said negligent representation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted.

(Queen v. Cognos Inc., [1993] 1 S.C.R. 87 at 110)
At a minimum, the representation was misleading, and, due to the foreseeability of the harm which befell me, certainly negligent. Further, my reliance on it was obviously detrimental to my wallet. (There may be additional claims to be had for injuries to my ego and reputation, but those can wait.) The problem is the first prong. Until the Nashville Predators start answering my fan mail, a special relationship (for which I have long pined) may be beyond my reach.

In the interest of preserving scarce judicial resources, I would settle for a heartfelt apology and some playoff tickets.

"Some Thoughts for Law Students' Parents"

Thy son or daughter wouldst a lawyer be,
And so thou worriest for thy progeny.
The road is fraught, and hardy folk have failed,
And o'er the grading curve too few prevail.
Thou fearest the expense may prove too great;
Thou hopest for thy child a different fate:
Thy son couldst yet a doctor be,
And spend his hours at golf (or poetry)!
Thy daughter might take up a useful trade --
And truth be told, she might be better paid.

Nay, few are called to burn the midnight oil
And yea, the cost is great, and long the toil;
And not all youths prove equal to the task --
But think what bounty thou wilst reap at last
With 'Esq.' appended to thy daughter's name.
Consider-ye how she might then repay
Thy long investment in her stock: a car?
A cottage where her parents might retire?
Thy son's J.D.? Think-ye your funds well spent,
His future wealth an ample dividend.

(But woe betide thee should thy daughter prove
Idealist, should she her ambitions lose.
Despair-thou of a son in Legal Aid --
Your long investment ne'er will be repaid.)

Yet, if at night thy mind remains astir,
Take heart, good Madam; worry not, good Sir;
From this take comfort in the seasons hence:
At least thou hast not spawned a grad student!

Look not upon the lowly MFA.
Revilèd Master of the Arts, away!
Tempt not our children with thy life of ease;
Their sober minds want naught of your disease.
Cur, shave thy filthy beard, and cut your hair!
Proselytise on Derrida elsewhere!
Abhorrent hipster sloth, at once begone!
A legal education starts anon!

Friday, March 20, 2009

FYI, President Bush

This bodes well for your upcoming book. I will totally read it though -- especially if it's a pop-up.

Update: I just had what I think is a tremendous idea and I think President Bush would do well to consider it.
Bush said that he doesn't know what he will do in the long term but that he will write a book that will ask people to consider what they would do if they had to protect the United States as president.
The book should be a Choose Your Own Adventure!



Sunday, March 15, 2009


Updates and traffic to this site dropped precipitously in the beginning of February. Around the same time, I got my second year fall term marks back. This is not a coincidence.

I will try to try to remedy the frequency of my posts. As to the marks, that ship has pretty much sailed.


Saturday, March 14, 2009

Online Privacy Is Dead

This appeared on Law is Cool

Reports of “the dark side of social networking” are thick on the ground as it is, but a recent court decision may renew paranoia that privacy is an artefact of the twentieth century, doomed to join its contemporaries (pagers, Chris Tucker, student activism, literacy, the Ark of the Covenant) in oblivion.

Just weeks after finding that Canadians have no expectation of privacy in their online identities, Ontario’s Superior Court of Justice has ruled that posts on Facebook and other online social networks may be discoverable against their makers, according to the Star’s Tracey Tyler.

Plaintiff John Leduc claims that injuries sustained in a car accident in 2004 have lessened his enjoyment of life. The court found that Leduc may be cross-examined on the contents of his Facebook account where such contents are relevant to his claim — despite the fact that security settings on his account restricted access to his profile to only his close friends.

If Leduc’s Facebook account contained evidence of him

  • exerting himself,
  • stopping to smell roses,
  • “seizing the day” in any fashion, or
  • otherwise engaged in merriment,

such evidence might undermine his claim. Pictures of him sitting on the roof of his car watching the sun set over a northern lake, or snowboarding through thick powder with the caption “Go for it!” beneath him, would be especially damning.

The decision overturns a Superior Court case management master’s ruling that forcing Leduc to produce the contents of his Facebook account amounted to a “fishing expedition”, since there was nothing — except Leduc’s opposition to disclosure — to suggest that any compromising photos in fact existed. Leduc’s profile consisted only of his name and picture.

A search of Facebook for accounts registered to “John Leduc” yielded 129 results — many of whom appeared to be enjoying themselves.

Wednesday, March 4, 2009


  1. In addition to highlighting one's textbook, it is prudent to review these alterations at a later date.
  2. Typing just the highlighting from one's textbook takes a hideously long time.