Thursday, February 19, 2009

Compelling Review of What Sounds Like a Compelling Book

Israel is not an abnormal democracyBy Haviv RETTIGThe Jerusalem PostOct. 23, 2008

"...In Western academe, Israel's position has arguably never been very good. From severe criticism of the 41-year military presence in the West Bank and Gaza to questions about the basic morality of a state which has closer relations with a vast non-citizen Diaspora than with its own large national minority, it has faced a decades-long torrent of bitter excoriation that has only grown with each new peace move and agreement.

Now, for the first time at this level, two veteran local academics with a long record on the liberal Left have launched a broadside in the battle raging in the ivory towers of the West. They do not object to criticism of Israeli policy or West Bank presence (they share the frustration over an "undemocratic occupation") but to the more fundamental claim that there is something irrevocably wrong, in liberal terms, with a Jewish state. Israel's identification with a distinct ethnic group and Diaspora, they argue, is a common and ordinary phenomenon in the democratic West.

Released in English translation in Britain in July, Israel and the Family of Nations: The Jewish Nation-State and Human Rights, though accessible to the educated layman, is a thoroughly researched academic work. At $140, it is priced like one, which may be a pity considering the importance of the tightly woven argument to the public debate over Israel.

The authors are Hebrew University history professor Alexander Yakobson, a former Meretz activist and Peace Now member with a regular op-ed column in Haaretz, and renowned professor of constitutional law Amnon Rubinstein, a Meretz minister of education in the Oslo years and author of the Basic Law: Human Dignity and Liberty.

This background informs their argument. This is not a book that defends government policies. As Yakobson explained in a recent interview with The Jerusalem Post, "We are not trying to counter the claim that the occupation is against democracy. The occupation by definition is against the principles of democracy. The Palestinians do not elect the Israeli military governor." Rather, the two scholars are tackling "something much more basic - an ideological assault not on Israeli policy or the occupation, but on the basic premise of a Jewish state and the two-state solution."

"Internationally this is a very widespread argument," Yakobson notes. "Tony Judt in the New York Review of Books wrote that the very idea of a Jewish state is rooted in another time and place, that Israel is an anachronism, a 19th-century idea that is fundamentally wrong and doesn't belong in this world. He has said that the root of the problem is not what Israel does but what Israel is." The significance: Judt "is not some Trotskyite or radical. He belongs to the liberal mainstream. It may be marginal politically, but the intellectual mainstream can become the political mainstream."

Israel and the Family of Nations tackles the question methodically, reading like a walking tour of the complex anti-Israel arguments heard in academia. For example, they quote Israeli sociologist Baruch Kimmerling arguing that Israel must change its Law of Return for the sake of the "normalization and democratization of the state." Kimmerling is one representative of those learned detractors who argue that Israel's relationship to the Jews of the world, its favoring a particular group of non-citizens (the Jewish Diaspora) over other non-citizens, is discriminatory and even racist.

But, note Yakobson and Rubinstein, this view - often stated as an unquestioned fact - is actually opposed to the theory and practice of democratic states, particularly in Europe.

Their proof is exhaustive. In 2001, they write, a commission of European legal scholars was convened to advise the Council of Europe on constitutional issues "that conform to the standards of Europe's constitutional heritage." It concluded, in the authors' words, that "it is a recognized European norm that a nation-state can maintain official ties with its [ethno-cultural] 'kin' outside its borders and treat them preferentially in certain areas, including immigration and naturalization."

Thus, the European lawyers, sitting as the European Commission for Democracy through Law (the "Venice Commission"), not only praised the connection of "kin minorities" abroad to their "kin states" through ethnic and cultural ties, but in their report noted "favorably the growing tendency of kin states" to act to protect their ethnic minorities abroad - minorities who are not and have never been citizens of that state.

In fact, legislation offering both favorable naturalization and some benefits without naturalization to non-citizen "kin minorities" can be found in Ireland, Greece, Slovakia, Poland, Hungary, Bulgaria, Russia and Armenia. International agreements protecting kin minorities exist between Austria and Italy (establishing specific rights for German-speakers in Tyrol), Denmark and Germany, Italy and Slovenia and among several "new democracies" in Eastern Europe.
In Germany, the constitution and subsequent legislation have conferred on all ethnic Germans from ex-USSR countries the right to automatic citizenship. As the book explains, "This applied to a large population of ethnic Germans living in those areas for hundreds of years, without any civic or geographic connection with the modern German state."

Even Finland, "a long-standing Western liberal democracy" with a national identity that includes all citizens, the Swedish-speaking alongside the Finnish-speaking, has a Finnish-speaking law of return. According to this legislation, ethnic Finns who emigrated from modern-day Finland to lands in Russia and Estonia as far back as the 17th century enjoy Finnish governmental assistance in preserving their ethno-cultural identity where they live, while their immigration to Finland is expedited and defined by the state as a "repatriation" to their homeland.
Is any of this sounding familiar? Indeed, the Palestinians themselves will enjoy such a relationship with their own extensive diaspora, Yakobson points out. "Everyone understands that if and when there is a Palestinian Arab state it will have a law of return within its boundaries. This is part of what is required of Israel [in peace negotiations]. It is part of Clinton's parameters. This law will apply to people not born in the West Bank and Gaza, and it will reflect the fact that the state will have been established to grant independence to the Palestinian people, so anyone belonging to this people can join it."

THE BOOK is not a traditional pro-Israel polemic in the sense that it does not extol Israeli behavior, but seeks to point out that, in its basic definition and goals, Israel is well within the norms of democratic practice. In Yakobson's words, while "every state is unique, Israel is not 'exceptional' in the negative sense. It is not an abnormal democracy."

The book includes chapters on Israel's establishment and the UN debates on partition in 1947-9, when the international community voted for a "Jewish state"; the views of the Zionist movement on the character of the future Jewish state and the rights of the Arab minority; international law, human and minority rights and their application in different democratic countries; religion and state in Western democracies; the relationship between nation-states and their national minorities; along with other issues that come up in the intellectual debate over Israel's legitimacy.

In dealing with the argument equating Zionism with colonialism - a favorite in both academia and Arab politics - the authors once again bring homegrown Israeli anti-Zionists into the ring.
The claim that Zionism was "a movement of 'pure' colonialist settlement" is taken from the writings of Ben-Gurion University professor Oren Yiftachel, who explains in passing that this is true despite a few "clear differences when compared to other colonialist movements." These differences, he elaborates in a footnote, are "the character of Zionism as an ethnic-national project rather than an economic one; the refugee status of most of the [immigrating] Jews; a loosely connected network of Jewish communities in the Diaspora rather than well-organized mother states; and the concept of 'the Return to Zion' anchored in the Jewish tradition."
In other words, Yakobson and Rubinstein note with some sarcasm, "Zionism is in every sense a colonialist phenomenon similar to other colonialist phenomena - except for its being a national movement not motivated by an economic profit motive, that it grew out of Jewish distress and was implemented by people definable as refugees, that the settlers did not have a colonial mother state and that the connection to the Land of Israel was part of the traditional historic identity of the Jewish people."

The English translation is new, so the book has yet to be properly taken to task by the opposition. But reading the Yakobson-Rubinstein side of the argument, one is left with the sense that those arguing against the possibility of a Jewish and democratic state (and often against the viability of modern Israel) are more the victims of intellectual laziness than rabid ideology.

Perhaps the clearest example of this is the claim made often in the Arab world and Western academia - and even among some Jews - that the Jews are merely a religious community and not a people, and therefore don't "qualify" for a nation-state.

"On the Left, it is usually said that 'peoplehood' should be defined by the people in question and not externally. This is why we rejected Golda Meir's statement that the Palestinian Arabs are not a distinct 'Palestinian people.' We claim for the Jews the same privilege," Yakobson insists. "The international community explicitly recognized the Jews as a people with national rights - the UN in voting for partition and a Jewish state in 1947, and the League of Nations which supported a 'Jewish national home' in Mandatory Palestine. Even those who speak of a binational state, like Judt, must base this on the premise that there are two national peoples, two national communities."

Most importantly, the Palestinians themselves "accept that there are two peoples here. In all their constitutional documents, the Palestinians define themselves as the Palestinian Arab people, part of the Arab nation. They never claimed that the Jews in this country are a religious community within the Palestinian people. In fact, maybe the only thing Jews and Palestinians agreed on is that they belong to two different peoples."

In short, he says, "the whole argument is absurd." So absurd, in fact, that Yakobson wonders if "the right to national self-determination is some kind of a club with a 'no Jews allowed' sign hanging at the entrance. The principles of national self-determination are widely accepted by the Left worldwide as a universal principle. We support this right when it comes to the Palestinians. Why do many people on the Left refuse to apply this principle to the Jewish people?"

AT THE end of the day, Yakobson and Rubinstein are doves, and their motive for writing the book reflects that sensibility. Efforts to undermine Israel's legitimacy as a Jewish state are not just intellectually dishonest, Yakobson argues, but they are actually preventing peace.

"When you regard Israel as an illegitimate foreign element, any peace with it is a humiliation," he says. "The Palestinians look at a map of the Middle East and cannot believe this tiny foreign body is irreversible. Even if part of the leadership accepts the need to make peace with a foreign invader, there will always be significant forces refusing to accept it. [Faced with such a challenge,] it is extremely difficult to use force against your fellow Palestinians in defense of an entity that is a foreign intruder."

On the other hand, acceptance of "the Jews as part of the Middle East means you are making peace with your neighbor, your cousin. It is an honorable thing, no matter how bitter the quarrel was." In that scenario, a Palestinian government acting against terror groups "is acting in defense of an honorable peace, not to rescue an intruder."

It is this understanding that lies at the heart of the book, that gives birth on the Left to perhaps the most vigorous defense of Zionism in recent decades. "The debate about legitimacy, although it sounds academic and irrelevant, is actually necessary for peace," says Yakobson. "In the conditions of the Middle East, ideological non-acceptance impedes practical acceptance."
For this reason, too, the book is addressed not only to the Palestinians, but perhaps first of all to the Western academics who argue against the legitimacy of the Jewish state.

"Whoever supports a two-state solution should know that you cannot then evade the question of the legitimacy of the Jewish state. If you attack the idea of a Jewish national home as colonialism and imperialism, you are contributing to the conflict and to the price the Palestinians have paid. And clearly," Yakobson adds, "it is the Palestinians who have paid most of the price..."

More on Half Full and Like Issues


"...Since comrades may be politically incorrect, Khavayrem

I suppose we all have this pekl, that we carry around, and it is full of stuff. Stuff being life experiences, some we actually personally experience like the time I got kneed in the baytzem by a public school anti semite, and some we absorb somewhat fun der vytense, like the holocaust. Growing up Jewish in Wasp Toronto, I was aware that I was an outsider who endured much harrasment, making sure I didn't walk home from school alone.

My first inkling of diversity in Jewish life, occured while attending shulla on Brunswick Ave. The building next door housed the Tulmud Torah: a group of Jewish kids with whom I had no identification. These were kids whose curriculum had nothing to do with ours. They were not the enemy by any means, but yet they threatened my identity, and as a Jew, where I was also out of the mainstream.

This was pre Israel, but the Hebrew they learned, secured their connection with the future state. On my one trip to Israel, I too felt a rush of emotion when I encountered the wall. In my pekl there are the crusades, the inquisition, and well, we all have the same list, and they all contribute to that emotion. Notwithstanding that secular Jews were in the forefront of the establishment of Israel, it is my impression, that secular influence is on the wane, and the kids from the Tulmud Torah are waxing.

On my trip we went to a Kibbutz. We were shown a small shul, but were told "nobody goes there". That was 25 years ago, but now the kibutsim have lost their significance. One of the delights on that trip was being able to speak in Yiddish with some "survivors".While I fully support the existence of Israel, my emotional attachment is less than before. Like a love affair, when your lover pushes you away , even though you try to hang on. There is so much about the country that angers me.

I suppose it is partly because they want to be a country "like any other country", and I grew up believing that there is something about Jewish culture that is special. We wrote the book on do unto others, have we now added before they do onto us? We will never be able to define,or describe what Zionism should be. Within Israel there is so much diversity, look at the election results. Imagine, an Israel where labour is sucking a hind teet. This is not the Israel I know. I really don't recognise the place from my Yiddish upbringing. And yet so much that draws me.

Utter confusion..."

Half Full


"...I say 1/2 full:

Israelis come from more than 100 countries. They represent diverse ethnic, religious, and racial groups. Roughly half the population has origins in Africa, the Middle East and Asia. Roughly one-fifth of the Israeli population is not Jewish. Most of those are Muslims, but Christinas, Druze and Baha’is, and other faiths are also represented.

Hebrew and Arabic are the two official languages.

The freedoms and rights associated with liberal democracy are protected in Israel. Israelis enjoy freedom of speech, assembly, and religion.Israel’s free press is one of the most vibrant in the world.

Unlike the mostly government-controlled media in the region, Israeli journalists report on all aspects of Israeli life, and do not hesitate to criticize. Israel’s Declaration of Independence guarantees freedom of religion for all.

Each religious community has its own religious schools, councils, and courts, and exercises jurisdiction over matters of personal status such as marriage and divorce. The holy places of each religion are controlled by officials of that faith, not the Israeli government. A popular slogan is that Jerusalem should be free and accessible to all faiths. Indeed it should be — and it has been only since Israel assumed responsibility for the entire city in 1967. Today, any Muslim is free to pray at their holy places in Jerusalem. Tens of thousands of Muslims peacefully pray on the Temple Mount during Ramadan.Israel also recognizes the freedom of assembly.

Tens of thousands of Israelis have turned out for rallies for peace, sometimes in support of their government and sometimes to protest its policies.

While the United States has only two major parties that are often criticized for being too similar, Israeli voters had political views 33 parties to choose among including three Arab parties.

Israel provides full equality for women. Women in Israel are protected by law from discrimination and abuse, and they have been engaged in all walks of life, from homemaker to combat soldier to prime minister.

Israel is one of the most progressive countries in the world in recognizing differences based on sexual orientation. Israeli law forbids discrimination based on sexual orientation. In August 2006, Jerusalem hosted Love Without Borders: WorldPride Jerusalem 2006, a weeklong event organized by LGBT activists from around the world. This demonstration was then the second one of its kind in the world.

Israel is not perfect. Who is?

No one should be surprised that Israel has fallen short in just 60 years plus given the external threats it faces.

As I say 1/2 full..."

Middle East More


"... Itzik, Yours is what might be construed as a very impassioned letter coming from a secular Jew whose background was anything but of a Zionistic stripe (although none of us knows the other, the true other --we often hardly know ourselves at times). But at the risk of being a little too analytical, I also intuit a sense of conflict in which you want Israel to be an ethnic (read Jewish) state while at the same time a democratic state. It can be done you seem to say. And you say this with conviction and passion, invoking examples of other states that have an ethnic base but remain a liberal democracy.

We need an in-depth discussion of each of these states and see if they actually measure up to the idealized version of what I consider a democratic state in its fullest and complete expression.

Your personal Judaism requires Israel as a constituent element in your Jewish identity. Since this is so for you (and I agree, for many Jews, if not the majority of the world's Jews) then you must see Israel as a Jewish state whose predominant personality is Jewish (although you don't deal with the thorny issue of what the make-up of that Jewishness consists). You don't give the reader a clear vision of how Jewishness can reign supreme in the context of a liberal democracy which assures equal rights for all regardless of ethnicity or religion.

Could Israel ever have an Arab Muslim prime minister, an Arab Christian president, with a Knesset consisting of 61 Arab Israeli representatives of the same political party?

I, too, have visited Israel, several times, and I have felt the emotion of a few 1000 years of Jewish history within my soul (my secular soul) as I stood in front of the Wall with tears in my eyes. The Holocaust still reverberates in my "gantze neshome" and will forever; Israel was a reward for survival (please no heart-wrenching diatribes about this description) and still occupies that position in the minds of many. But -- if we can't answer YES to my question above, what kind of Judaism were you and I brought up with? You and I were both taught that this question had to be answered YES for the sake of both our Judaism and the prophetic tradition upon which we were nurtured and the democratic principles that we came to understand from our exposure to the ideas of internationalism...."

Wednesday, February 18, 2009

Response to Gerry Concerning Zionism and Other Things


"...To respond to your last email Gerry, I think we need to register some distinctions: between the original conception of Zionism and what it might mean today; between what Israel's founders dreamt the state would be and what it is today; between what it is today and what it arguably should be, between what Israel has been and what it arguably should be.

These distinctions, I argue, can point to a refurbished idea of Zionism, essentially Israel as Jewish state that is compatible with the principles of liberal democracy. They point to Israel as an ethnically based state, like others which are liberal democracies, that separates synagogue from state that accommodates non Jewish minorities on liberal democracy's principles of civil rights and liberties including equal protection under law and the principle of equality itself. I say as well that these distinctions point to answers to the problems you raise of religious privilege, biblical imperatives and demographic pressures. The tension is in maintaining the irreducible core of Zionism, Jewish statehood, against the demands of liberal democracy.

The reformulation of Zionism that I argue for meets arguments put aginst Zionism rooted in the historic pressures leading to it and its original conceptions. Of course that reformulation and that tension have to be seen within a number contexts: adjacent existential bellicosity; a large and growing and growingly angry non Jewish minority of Israeli Arabs; the need for security against the threats without and the threats within; the threats of demography; the need to balance what security requires with liberal democratic principles; the struggle to make Israel a secular, ethnically based and liberal democratic state.

Benny Morris, I have read, argues now that Israeli Arabs pose an existential threat to the Jewish state and need to be dealt with accordingly. Lieberman has positively brought front and centre the issue of privileging religion and negatively the issue of Israeli Arabs. He has been salutory, even while repugnant, in forcing to light problematic issues that need to be addressed. And Michael Oren, as you know, advocates Israel's unilateral withdrawal from the West Bank in order to divert demographic pressures threatening Israel's Jewishness.

In any event, it may be that your questions whether Israel is essential to Jewish identity, whether there is enough in our traditions to nourish that identity regardless of Israel as a Jewish state do not need, can and need not have an "objective" answer. And it may be that most Jews answering those questions for themselves hinged on Israeli Jewishness is answer enough. Their answer is an is. The is is not an ought, but the is is reality, however you choose to answer those questions for yourself.

Still the questions remain to be answered for anyone who thinks about these issues and acts on his or her conclusions. Speaking for myself as a deracinated, secular Jew, who believes in the liberal democratic ideal, whose daughters were never pressured to marry within to the consequence that one of them did not and the other now dates a non Jew, all of which concerns me not at all, for how I was raised by you know whom, for how I received and internalized the memory of the Holocaust, for how I was gripped with panic before the 6 day war, for how I felt at home visiting Israel while even not wanting to live there, for how it means something when I find out someone is Jewish, for my pride in Jewish accomplishment and our legacy of accomplishment, for countless like examples, I cannot gainsay the importance of Jewishness to me and the importance of Israel as a necessary constituent of my Jewishness. I see myself as having a kind of rooted cosmopolitanism to use Appiah's phrase.

And here let me reason like a lawyer: if I feel this way, imagine how Jews, most of them, whose commitments to their Judaism and to Israel are much more explicit and less paradoxical than mine, feel.

I have only read bit and pieces of Avishai and defer to your wider and deeper reading of him, but my impression of him is that he argues much as do I, though better of course, for a like refurbishing of the Zionist idea, for all Israel's failures, shortcomings mistakes, bad compromises and confoundments--his notion of the "Hebrew Republic".

I'll simply end this by quoting him as well:

'...This outdated structure - this peculiar kind of Jewish state - must change. Indeed, Israel is really two Jewish states, not one. There is the democratic, Hebrew republic, in which equality of citizenship, speech and enterprise is mainly guaranteed by the courts. But this encases an older, heroic settlers' state, which began during the period of the British mandate and privileged Jewish immigrants and Jewish orthodoxy. Sure, the Zionist state-within-a-state made sense in its time. But it was supposed to be retired after 1948 - a scaffolding to be taken down when the democratic state was launched. It was, tragically, given new life by land conquered, and the apocalyptic feelings unleashed, during the 1967 War...

Which is not to say the solution requires great originality. We need only imagine the Hebrew republic that would emerge if Israel would be qualified for, say, the European Union. For the orthodox of Jerusalem, or Diaspora Jews whose connection to Israel is tinged with religious idealizations, this would require an adjustment. But would the majority in Tel-Aviv notice the change at all?...' "

Family Law Changes: Pensions

Pension Guy:

"...Dear Valued Clients:

I am writing to discuss a significant development in the area of pension valuations for marriage breakdown purposes. As you probably know, I am an actuary who has worked in the area of pension plans for many years, including performing many pension valuations for family law purposes.

I want to alert you regarding Bill 133 which was introduced recently by the Ontario Government. Click on the following link for details regarding the bill.

Bill 133 effectively permits settling of pension benefits in marriage breakdown situations by the pension plan administrator (much like in federally regulated pension plans) , which up until now has not been permitted under Ontario pension law. (In other words, plan members will be able to access their pension to pay their equalization debt, if necessary.) The bill also requires that pension valuations governed by the Ontario Pension Benefits Act be provided by pension plan administrators for marriage breakdown purposes - a single value based on prescribed assumptions, rather than the current Canadian Institute of Actuaries standard which can result in multiple retirement age scenarios and which reflects the actual circumstances/facts of the case (including projected income tax rates and in rare cases below average health of the member, for example).

I have seen in several publications that some members of the pension law bar and the family law bar are applauding the pension changes in Bill 133, with the hope that the legislation would simplify pension issues in family law cases as well as reduce costs for the parties. Unfortunately, those applauding may not yet fully understand the very significant problems with the proposed legislation, some of which make the legislation unworkable in my opinion.

The option for a plan member to settle some or all of his or her equalization obligation by way of a transfer from a pension plan is a very positive development for separating couples (although this will lead to significant administrative costs to pension plans, which the plans may not yet realize). The proposal to have pension plan administrators perform the valuation of plan members’ marital assets is highly problematic and I believe unworkable for a variety of reasons (including the significant issue of income taxes which has been ignored), and most certainly would not achieve the intended goals of simplicity and cost reduction. Most importantly, whatever valuation method that is chosen would be grossly unfair to one side or the other in the marriage breakdown, and possibly even to the pension plan’s remaining members.

A major goal of the valuation related aspects of the pension legislation changes appears to be to have a one size fits all methodology which would simplify matters. The problem with this goal is that when dealing with the pensions of real people, with real differences in circumstance, this approach will often be very unfair. Basically, close to 50% of separating individuals where one or more of the parties has a pension will be unfairly treated under Bill 133, in many cases very unfairly treated, and in some cases so severely as to make the result absurd / unconscionable. While some may appreciate the simplicity, the party in the divorce who has been treated unfairly would have little or no recourse to right the injustice. This is presumably not a goal of law reform.

Many family law lawyers do not yet realize that the pension valuation provisions proposed would have a significant negative effect on too large a number of their clients (even if somehow the unworkable elements were “worked out”.) Pension lawyers appear to have not yet considered that while it would be a very positive development for them (and their plan sponsor clients) to not have to deal with problematic “if-and-when” division at source agreements any longer in the small minority of divorces where this option is chosen, the proposed legislation would effectively require plan sponsors to be involved with every single divorce that occurs among plan members, with very significant administrative headaches and costs. (Costs would be reduced considerably for plans if only the proposed settlement changes were implemented).

Based on the current design and wording of Bill 133, the valuation problems cannot be mitigated by the development of the corresponding regulations. The current "word on the street" seems to be that the plan administrator provided value may be based on the termination value, i.e. the minimum value which is provided to plan members upon termination of employment. This value does not include non-vested benefits, including in most cases early retirement rights and ad hoc inflation increases (even if they have been granted for decades and are planned for the future), which are currently reflected in pension valuation scenarios for marriage breakdown purposes. In many cases this could have an absurdly unfair effect on non-member spouses. As an example, if under current circumstances, the actuarial present value of a pension assuming early retirement at age 55 is worth, say, $600,000, it is quite possible that the termination value could be only half that amount, or $300,000, as it would likely be based on age 65 (and therefore reflects 10 years less pension payments to the member). If it is plainly evident in a particular case that $600,000 is most appropriate (for example, if the plan member stated that he/she was going to retire early and then did so), if the $300,000 value is statutorily mandated, the resulting inequity would be unconscionable. Oddly enough, there are some very real scenarios where using the termination value could actually be unfair to the pension plan member instead. Even if the termination value does not end up being prescribed, one can plainly see in the above example that any single value would not be appropriate in all cases and would lead to an unfair result - I must stress, sometimes the result could be absurdly unfair.

As such, as you may have guessed, I and other actuaries have been strongly recommending that the pension valuation related aspects of the proposed legislation be abandoned, while maintaining the revisions to settlement options.

I can obviously be accused of being biased, seeing as I do a lot of pension valuations for marriage breakdown purposes, and the need for independent actuarial valuations would be diminished (though not eliminated) if Bill 133 were enacted; I can understand if that were the perception. I should therefore point out that the Law Commission of Ontario (LCO) recently distributed a thoughtful, detailed report which did not recommend the proposed approach for valuation. The LCO report recommended various settlement options (some of which have been adopted in the proposed legislation), and provided some clarity to some valuation issues, but effectively left valuations in the hands of professional actuaries, providing multiple scenarios where applicable, to reflect the reality of the individuals involved. Their wording regarding the retirement age issue is better than I could come up with: "Given the complexity and diversity of pension plan options and the multitude of different factual circumstances that could arise, the LCO is not convinced of the merits of a presumption regarding retirement age. In our view, any issue as to when a member will retire should continue to be treated as a question of fact, resolved on the basis of the evidence according to the balance of probabilities." This is inconsistent with Bill 133 in a fundamental way.

Click on the following link to review the LCO's report.

There are other issues related to the pension provisions of Bill 133 which will have an impact on separating spouses. I would be happy to discuss them with you if you are interested.
Many of you have been clients for quite a few years, and some have attended my presentations at the Ontario Bar Association and Osgoode Hall. You therefore are familiar with my "no nonsense" communication style - I like to "tell it like it is" - hopefully you can therefore trust me when I say that if the valuation aspects of Bill 133 are implemented, there will be significant inequities imposed on too many of your clients. I urge you to express your opinion, through the family law section of the Ontario Bar Association (Section Chair: Mr. Thomas Dart at who will hopefully be consulted during the legislative process, and directly to Attorney General Christopher Bentley (click on the following link for contact info ) and his staff.

Thank you for your consideration of my comments.


David Wolgelerenter DSW Actuarial Services Inc. 3219 Yonge Street, Suite 311 Toronto, Ontario M4N 3S1 Phone: 416-489-2824 Fax: 416-781-1021 Email: Website:"

Monday, February 16, 2009

More Middle East


"...Itzik: The problem is yours. The problem is mine. I'm not trying to run away from the idea of Israel as a state that was founded as a Jewish state. I may be trying to run away from it as a state with a state religion that will continue to be the religion of the state even when the majority of it's inhabitants are not Jewish -- which according to Israeli demographers will happen soon. In any event there are other questions I ask myself when I consider the demographic future of Israel. When Israel was declared a state in 1948 was it declared a state with a state religion? Or was it declared a secular state-- a state for Jews regardless of how they believed or didn't believe -- with caveats -- (a Jewish mother if you were going to be a Jew.)

That's what Israel's consitution say. Oooops. Israel doen't have a constituion. But, in a political compromise with the Haredi rabbi's of the time, Ben Gurion made his pact with the devil that in effect gave Israe a state religion that declares people like you and me -- secular Jews -- the devil's spawn, and our children or grandchildren if they are not born of Jewish mother's momzeyrim -- bastards, and the conversions of Reform rabbis not valid. Clement would be more comfortable in Jerusalem these days than surrounded by Italian hedonism.

But, I wax sarcastic.

And, the issue is a serious one for any of us who consider ourselvews Jews and want to remain Jews.

Let's remember the core of the Zionist idea, which was an idea born in the Pale of Russia as a counter to the general liberation movements of the mid nineteenth century which were largely socialist and stuggled to create democracy in place.Zionism at its core said that, because of the endemic anti-semitism in Europe, Jews would never achieve a normal existence unless they could build it in their own state. And, those of us who remained outside would never live normal lives and were destined to fade into the general population either through apostasy, or assimilation into the majority culture.So, the questions are -- am I not living a normal life as a Jew because I don't feel the need to look to Israel to strengthen my identity?

Do I not think that there is enough in the Jewish tradition (-- all aspects of it -- including Israeli) that I can't get enough sustenance to build a comfortable Jewish Identity? Do I thinkthe Jewish identity will disappear? No more than it has in other periods of history, many times willingly. Do I feel deracinated?

No, I'm not my bobbes type of Jew but I am a Jew, and in discourses like this I add to my Jewishness and to the dispepsia of others who perhaps don't agree with my take on the issues.

I'm going to pick up bits and pieces from Bernard Avishai's "The tragedy of Zionism"

"Yedt it would be wrong to confuse Israel with the movedment that produced it. Israel is a state inthe normative sense, a country, a home for its citizens, and not merely a cause for people who identify with Historic Zionism. Moreover when one makes the effort to distinguish the actual institutions of the Zionist revolution from the intentins of Zionist theorists -- and distinguishn both from the state's polticial constitution -- it becomes obvious that Israeli deomocracy was never fully organized."So, what happens when it becomes fully organized?

Will it remain a Jewish state? What will make it a Jewish state? Religion? Walls to keep the Jews who fit the definition of the Haredi Rabbis protected? If the idea of the Jew as Jew is weakening why don't we look at our lives in "exile" as the Zionist theorists call it. What is the nature of our Jewish cultural lives, our education, the institutions that give the community coherence?

To look to Israel as the the Roman Catholics do to the Papal State is a death knell for communities that historically led healthy existences outside of Israel -- even in biblical times.

So, yes, I want Israel to exist as a state. I think that if it is a healthy state it will make a contribution to our lives?

If it remains a state at war with itself -- religiously and politically, I'll sadly say, it was a good idea -- but people screwed it up..."

Sunday, February 15, 2009

More Middle East


"...Let me add a little spice to the stew we're cooking. In the critical latter days of the Haskala, when Zionism and Jewish Socialism were trying to define themselves for a people who were in poverty and social misery, for the most part, the Socialist Bund had a theory called "Doikayt" .... simply translated as "hereness." And, they gave the example that given the number of Jews in Poland and Lithuania, etc, the Jews consisted a community that was large enough to ask for a special definition of nationhood within the larger Polish polity. The Zionists said, "no go -- we need our own land." So, each had a conception of maitre chez nous -- one in place the other in the place of memory. Zionism, in numerical terms did not engage the majority of Jews. The Bund and its theories had a much larger, practical following. Zionism was a romantic ideal. Doikayt -- in place participation in bettering the lot Jews was the bedrock of Jewish Socialism. I guess what I'm getting at is that to define Zionism the national philosophy of place for the Jews is silly. It isn't and never has been. It's been a romantic notion that the Shoa made possible. And, like all romantic notions has come face to face with reality that it isn't working too well. The romance has faded and now everyone is arguing about the soiled sheets -- like any other nation. To put Israel on a pedestal as the anchor of Jewish identity goes against history. The old saying, "next year in Jerusalem was a romantic wish that has come true and soured the world for both Jews and non-Jews. Please explain how the possibility, the real possibility of the Haredi taking over and creating a Jewish verison of the mullah state in Iraq is part of the future which Jews building and living Jewish lives "here" should even consider. There is no contradicition between Zionism and democracy other than the contradictions that occur when the political power changes and we don't like them because they're not our idea of democracy. Zionism, the romantic zionism, is dead. Israel is alive. It is not a Zionist state. It is a state that is judged like all other states -- sometimes fairly...sometimes unfairly by what it does or doesn't do. The only objective reality is how the world views it. And, that isn't necessarily the reality of those within the state...."


"...Gerry, you’d need to be clear as to what you think concretely Zionism means today. I say it means Israel is a Jewish state.

You can *argue* that’s silly, romantic, outdated, ahistorical, irrational, dysfunctional, non-existent; and you can *argue* that you have a sanctified oak tree growing out of your navel. Saying the words doesn’t make something so or not so. There is a place called Israel. Prost and poshit. It’s a Jewish state. Prost and Poshit. Jews the world over perceive it vital to their identity as Jews. Prost and Poshit--and particularly as generations of Jews younger than your and my generations intermarry, assimilate, and, generally, become, as I rather am, deracinated.

For you to say Israel is alive and Zionism is dead is, as I say, to deny it’s a Jewish state with a sizeable Arab Israeli minority, which is to deny reality and pray before the sanctified oak tree. How do you genuflect, by the way? Even Levy does not abandon the idea of Zionism, but, says, rather, it needs to be redefined.

So by all means let Israel be judged by the standards of other ethnically based liberal democracies, which, I keep repeating, accord ethnically based prerogatives, as it tries desperately to work out its problems and survive.

And to this you say what exactly?..."

Saturday, February 14, 2009

More Middle East


"...Absolutely right, a hodge-podge. Please correct me if I'm wrong (I could well be because of the hodge-podge) -- Itzik and I agree on one thing, a Zionist state and a democratic state (remember democracy is idealized and goes beyond one person one vote and includes the principal of denying the majority the opportunity of exercising tyranny over the minority - but it certainly cannot be one in which anyone can proclaim racism without the hand of the law dealing justly with that individual --kind of like the sorts of laws we have here in Canada, laws we fought for for decades, with Jews prominent in that battle- thus making it embarrassing for any political party to avoid censuring proponents of racism among its ranks) cannot co-exist, like an oxymoron...."


"...Jerry and I may or may not be in agreement on one thing--I tend to think we disagree--depending on what the meaning of Zionism is, and what we each think about the consequences of that meaning.

If Zionism, taking it out of the attic and giving it a more modern airing, means Israel as a Jewish state roughly in the ways Italy is an Italian state, France is a French state, Germany is a German state, Quebec is a French province, Basmania is a Basman state, and so on, with certain ethnic and Basman based prerogatives, typical of most of these states, then I see no necessary contradiction between Zionism and democracy, though there are paradoxes, complications and hard questions.

On this notion of Zionism, there need be no minority tyranny, and there can be the well known elements constitutive of liberal democracy such as rule of law, private property, civil rights and liberties, free enterprise and markets, due process and equal protection under law and separation of church and state.

If Zionism means something more than what I have outlined, then there may well be a necessary contradiction.

So that’s one thing. What do you say about this Jerry, anyone else?

And what about the rest of my brief critique of Levy’s piece including my explicit denial of its “bravery”?.."

Essay by Zadie Smith

Essay here:


Gerry, thanks for this essay.

And I appreciate that you consider me as one who speaks in tongues. It's a heartening compliment that means something to me.

Still I had some trouble with Zadie's essay. It of course is well written and thoughful in its way. But the more I read it, I found it ponderous and meandering and at times verging on high sounding fatuity. In this, there is an interesting tension between her clear and commanding prose and what I often found to be her insubstantial thinking.

She ought to have acknowledged her debt to Lionel Trilling who covered the waterfront on the themes of variousness and liberalism and the liberal imagination.

I could not summon up her and Obama's antipathy for poor multi-racial "Joyce" who wants to reject being (type) cast as Black. Two immediate thoughts about this:

1. do I detect a contradiction in Zadie's argument between the plight of left in the nowhere middle Eliza Doolittle, with her, finally, text like voice and the rejection of, and contumely for, Joyce on the one hand and her rejection of essentialist notions of blackness and breaking past them to the idea of individuals' narratives of many selves on the other (see a great essay on this here: and

2. How does she, Zadie, in her self description of now being *univocal* and in rejecting essentialist thinking both: 1. separate herself in principle from Joyce; and find consistently argued grounds on which to criticise Joyce?

Finally as a microcosm for the worst swathes of her thinking, consider this:


"For reasons that are obscure to me, those qualities we cherish in our artists we condemn in our politicians."

She quotes Keats on Shakespeare:

"...I mean Negative Capability, that is when man is capable of being in uncertainties, Mysteries, doubts, without any irritable reaching after fact and reason..."

and then, herself: again:

"..Through the glass of 2009, "negative capability" looks like the perfect antidote to "ideological heroism..."

Artists operate with different constraints than do politicians and vice versa. We want our politicians to acknowledge their limitations, but surely not in their governing ever to stop "reaching after fact and reason."

So I find her on these subjects, articulate and ostensibly clear, but confused, unrigorous and occasionally fatuous.

But, hey, that's just me..."


"...a quick and perhaps fatuous comment before I try to find where the hell I put my Trilling. I both like and growled at the article -- in much the same way as you do. What I liked about the article is the recognition of what I call the "babble" that makes the man called Obama. Because he is not a unitary "it"... a human who in his DNA and pigmentation...he can speak in the tongues that course through him and his stage, mimic, absorb and add to the surround in which he exists the the flavours, tastes and uniquess of the complex "it" which he is.He is in fact a "cholent" bring it down to a shabbes level. He is the mixture of the uncertainties that disparate ingredients put into a pot and left to simmer finally produce something that is tasty or tasteless. Which is produced finally comes from the final dominance of one or another ingredient. While I love the recipe, on paper, I'm still in doubt as to the final taste. Salt and Pepper, the facts and reason are still being added to the pot..."


"...I think you put it better, more tellingly and more succinctly than she does, quite frankly, and you show up her portentous intellectualizing.

Obama's "mutness" is endlessly interesting and embodies an American story that is increasing in the frequency of its telling: America, to my delight, as a publicly polyglot nation, in which racial and ethnic and cultural differences, real and often invidious, seem less and less to inform criteria for public office--though there is surely a long way to go on so many fronts.

That for me is the meaning of post racial.

Zadie has not put forth a coherent line of reasoning on that theme and has not worked it out for herself in any way I noticed...."

Some Middle East Talk

The article:


"...This is a brave article. Will Jews hear it or will Jews respond in a common reflex manner which insists on fighting fire with fire and denouncing this kind of criticism of Israeli thinking as giving comfort to the anti-Semites of this world? Everyone avoids this discussion in North America because of the widespread belief that everything Israel does is right. It reminds me of the American bumper stickers I saw while living in California in the early 70's: "America -- love it or leave it." In other words, sha shtil. Fortunately, for the world, the anti-Vietnam war forces weren't sha shtil and the war finally ended. Everybody won when that happened...."


"...Like Jerry, I well remember those bumper stickers, and the word that invariably came to mind every time was "jingoism," with its clear definition of "my country right or wrong." History long ago taught all of us that when a country feels threatened from outside, (as Israel does, and certainly with justification) jingoism is even stronger in the hearts and minds of those who feel at such risk. And so I fear that this article will, in spite of its inherent logic, not only fail to move anyone, but may well stoke the fire of the opposition to such views. Some will, I suspect, even label it as treasonous. Is this man safe? I would worry. Ans as for the attempt to distinguish between “Zionism” and “Israel”….well, not in my lifetime, I despair..."


"...Oy vey, what a hodge podge, this mess is.

Here is for me its deepest contradiction and its fuzziest thinking even within its own terms of reference. On the one hand this kind of thinking is rejected: “A Jewish and democratic state? The Zionist left said yes automatically, fudging the difference between the two and not daring to give either priority.” That is to say, what Levy rejects is the glossing over of the apparent antimony between a Jewish state and a democratic state. Levy will not, like the left he tries to eviscerate, “fudge” that distinction.

Yet we have him right next, on the other hand, saying, “Anyone who wants a meaningful left must first air out Zionism in the attic. Until a movement that courageously redefines Zionism arises from the mainstream, there will be no broad left here.” Please, someone, square me that circle. How does Levy even begin to conceive of an aired out *Zionism* that has any coherence as a particular idea and a democratic state? Any idea of Zionism that is not empty must privilege Jewishness and, therefore, as we refuse to fudge, must cut against democracy.

There is also screed in this piece from the tilted, question begging circularity of its title, to calling Barak variously, a “grave digger”, a “hangman” and a “liar”, to mainstream politicians “making two wars” (with the clear implication of unjustifiably starting two wars as a foregone conclusion), to Israeli voters being so mindless as to be misled by “lies” (read: "ideas I disagree with"), to the “warmonger litany”—“Lebanon, Gaza, the killed children, cluster bombs, white phosphorus and all the atrocities of occupation”. Watch this for a contrast:

And Levy fails to back up what he is so self righteously vociferous about condemning—the lie that there is no one to talk to about peace. Let him or any of you tell me whom Israel can talk to, name names if you can, as Abbas is now over extended in the P.A. and Hamas is gaining popular support, and is without question part of a continuum of terror that runs from Iran through a possibly flexible Syria through Hezbollah and to Hamas, all grounded in the tenets of the Muslim Brotherhood.


Again, names please?

Levy can’t put his money where his mouth is, judging by this piece: good at hortatory declamation, bad at thinking and reasoning and evidence.

And riddle me this, now stepping outside Levy’s own terms of reference, how is it that Italy, say, can be considered an Italian country, where Italian is spoken, where myths of Italian origin feed national sensibility, where ethnic Italians the world over have certain national prerogatives, where things Italian inform public education, and so on, while still being perceived as a liberal democracy, with its own WW11 past not so far behind it, while Israel cannot be?

So unlike Jerry, I (who, probably like Jerry, favor a two state solution, a program of unilateral withdrawal from the West Bank, and who’s confounded by the Settlement Policy) find this article intellectually cowardly rather than brave. And Jerry’s false either/or categorization of its reception—“Will Jews hear it or will Jews respond in a common reflex manner which insists on fighting fire with fire and denouncing this kind of criticism of Israeli thinking as giving comfort to the anti-Semites of this world”—as though one cannot criticize it save for a “common reflex”, is, with all due respect to Jerry, an insult to independent and nuanced thought, and harbors a certain unseemly, self satisfaction...."

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"...[1] This appeal addresses the question of whether a trade union may invoke the jurisdiction of the court to enforce fines that it has imposed against its members for crossing a picket line.

[2] The respondents, Jeffrey Birch and April Luberti, were fined by the appellant union for crossing the picket line to attend work during a legal strike. In an application to the Superior Court of Justice, Justice Robert Smith held that a provision in the appellant’s constitution authorizing the fines was an unenforceable penalty clause. The appellant appeals that finding.

[3] For the reasons that follow, I would dismiss the appeal.

Are Mr. Birch and Ms. Luberti entitled to defend in the Small Claims Court?

[12] The union’s position before the application judge and in this court was that by failing to appeal their fines to a three member panel and then to file a complaint (if necessary) to the Public Service Labour Relations Board, Mr. Birch and Ms. Luberti lost their right to defend against the actions commenced in the Small Claims Court for the enforcement of the fines.

[13] The application judge held that once the union had sued its members in the Small Claims Court the members were entitled to raise any defence open to them. The application judge made reference to rule 25.07(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 relating to the pleading of defences and to rule 25.06(2) concerning the pleading of points of law. The application judge observed that the union had not provided him with any authority in support of its position that he should deprive a defendant in the Superior Court from pleading all possible defences available.

Are the fines imposed on Mr. Birch and Ms. Luberti penalties imposed under the union constitution, and, if so, are they unenforceable by the court?

14] The application judge concluded that the relationship between a trade union and its members is governed by the union constitution which is a contractual relationship. See Berry v. Pulley, 2002 SCC 40 (CanLII), [2002] 2 S.C.R. 493 at para. 48:

[T]he time has come to recognize formally that when a member joins a union, a relationship in the nature of a contract arises between the member and the trade union as a legal entity. By the act of membership, both the union and the member agree to be bound by the terms of the union constitution, and an action may be brought by a member against the union for its breach[.]
The application judge held that the contract between the union and its members is a contract of adhesion as the members had no real bargaining power with the union: see Berry at para. 49.

[15] The application judge further held that, at common law, the courts will not enforce a penalty clause in a contract that does not provide a genuine pre-estimate of damages: see Canadian General Electric Co. v. Canadian Rubber Co. of Montreal (1915), 27 D.L.R. 294 (S.C.C.); Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd. [1915] A.C. 79 (H.L.); J.G. Collins Insurance Agencies Ltd. v. Elsley Estate, 1978 CanLII 7 (S.C.C.), [1978] 2 S.C.R. 916.

Is the penalty imposed by the union enforceable because it is not unconscionable in the circumstances?

[19] In respect of the enforcement of the penalty clause, the application judge concluded that notwithstanding the language used by Sharpe J.A. in Peachtree II “the [common] law rule remains in effect that the courts will not require a party to pay a genuine or true penalty on grounds of public policy.” However, as a result of the views expressed by Sharpe J.A. in Peachtree II, the application judge considered the application of the doctrine of unconscionability to the facts of this case.

[20] The application judge adopted the test for unconscionability expressed in Ekstein v. Jones, 2005 CanLII 30309 (ON S.C.), 2005 CanLII 30309 (Ont. S.C.) at para. 57 as follows:

(a) that the terms are very unfair or that the consideration is grossly inadequate [and]

(b) that there was an inequality of bargaining power between the parties and that one of the parties has taken undue advantage of this.

[33] On appeal to this court Sharpe J.A. said at para. 30:

Should the impugned clause in the present case be assessed from the perspective of the common law rule against penalty clauses or does the appellant’s case amount to a request for relief from forfeiture? For the following reasons, I consider that the appellant’s case amounts to a request for relief from forfeiture.

[34] While the court in Peachtree II declined to decide the issue of whether a penalty clause in a contract remains per se unenforceable Sharpe J.A. did not leave much doubt concerning where the courts should head when squarely faced with this issue. He said at para. 32 of his reasons:

Second, I agree with Professor Waddams’ observation in The Law of Damages, looseleaf (Aurora: Canada Law Book Inc., 1991) at para. 8.310 that as there is often little to distinguish between the two types of clauses and that there is much to be said for assimilating both under unconscionability. The effect of assimilation would be “to provide a more rational framework for the decisions of both forfeitures and penalties”.

Unconscionability is also the direction suggested by the dictum of Dickson J. in Elsley v. J.G. Collins Insurance Agencies Ltd., 1978 CanLII 7 (S.C.C.), [1978] 2 S.C.R. 916, 83 D.L.R. (3d) 1, at p. 937 S.C.R.: “It is now evident that the power to strike down a penalty clause is a blatant interference with freedom of contract and is designed for the sole purpose of providing relief against oppression for the party having to pay the stipulated sum.” As pointed out by the appeal judge, this would also appear to be the direction of s. 98 of the Courts of Justice Act, R.S.O. 1990, c. C43: “A court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise, as are considered just.” All of this suggests to me that courts should, whenever possible, favour analysis on the basis of equitable principles and unconscionability over the strict common law rule pertaining to penalty clauses.

[45] However one articulates the test for unconscionability, I am satisfied that it involves more than a finding of inequality of bargaining power between the parties to a contract. Both the test adopted by the application judge in Eckstein and the test in Harry of the British Columbia Court of Appeal recognize that a determination of unconscionability involves a two-part analysis – a finding of inequality of bargaining power and a finding that the terms of an agreement have a high degree of unfairness. I see little, if any, difference between a description of terms of a contract as “very unfair” or “substantially unfair”. I am also of the view that “abuse of the bargaining power” identified by Robins J.A. in Fraser Jewellers is another way of describing substantial unfairness.

Standard of Review

In the much cited case of the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235 at para. 36, the majority said:

Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

The penalty clause is unconscionable

[50] The application judge relied upon Iacobucci J.’s reasoning in Berry that in a contract of adhesion, a union member has no bargaining power with the union. Iacobucci J. also concluded that it is when the contract is formed that determines whether there was inequality of bargaining power. When Mr. Birch and Ms. Luberti joined the union, they took the union constitution as they found it with no ability to negotiate or change its terms until they became members. The fact that they could recommend and lobby for change after becoming members does not alter the analysis.

Were Mr. Birch and Ms. Luberti required to proceed in alternative forums to challenge the validity of the penalty clause in the constitution?

[66] It is a settled principle of administrative law that a party who seeks to challenge a decision of a domestic body must first exhaust his or her internal remedies before seeking judicial review in the courts. I do not see that the principle applies here. In this case, it is the union, not Mr. Birch and Ms. Luberti, who is seeking the court’s assistance. In the case at bar, it is conceded that there is no provision in the union constitution or in the Public Service Labour Relations Act which provides for the enforcement of fines levied by the union. In my view, it would be a surprising result to permit the union recourse to the courts to enforce a fine or penalty and deny the union member the right to advance a defence that the penalty was not enforceable because it was unconscionable. I see no merit in this ground of appeal. I perhaps should add that, unlike the application judge, I find it unnecessary to resort to rules 25.07(4) and 25.06(2) of the Rules of Civil Procedure to come to this conclusion...."

Justice Jurianz dissents.

Defence of Officiallly Induced Error

There are five elements to thew defence of officially induced error:

1. the accused must considered the legal consequences of his actions and sought legal advice;

2. government agents involved in administering the law in question had to give the advice;

3. the advice had to be erroneous;

4. the accused had to rely on the advice;

5. that reliance had to be reasonable.

Duty counsel advising the accused not to give breath samples on charges of impaired driving does not speak for the government and the defence does not arise.

R. v. Pea 93 O.R. (3d), 67, (O.C.A.)

Wednesday, February 11, 2009

Installation of Software as a Repair Under Repair and Storage Liens Act
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"...TRAFFORD J.:—In the circumstances of this case, I am satisfied that the development of software by Microsys and its integration with the hardware of the plaintiff Anritsu’s equipment is a “repair” under the Repair and Storage Liens Act, R.S.O. 1990, c. R.25 (the “RSLA”). Money, labour and skill were applied to the equipment for the purposes and with the effect of altering and transforming its properties. Accordingly, Microsys is a “lien claimant” under that legislation and is entitled to the benefits of its enforcement regime. Moreover, in any event, independent of its entitlement under the RSLA, Microsys should be entitled to possession of the Anritsu equipment for the purposes of testing it so as to further the defence to the claims. A period of 90 days is granted for such testing. By the end of the period, that equipment is to be forthwith returned to Anritsu, subject to the rights of Microsys under the RSLA. Costs to Microsys in the amount of $3,500 are payable forthwith..."

Serra v Serra: Post V Day Decline: Recession
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"...[1] The important issue raised on this appeal is whether, and if so, in what circumstances, a market-driven post-valuation date change in the value of a spouse’s assets may be taken into account in determining whether an equalization of family property is unconscionable under s. 5(6) of the Family Law Act.[1] This legal question has not previously been decided by this Court. A second issue is whether – if the decline in value of the appellant’s principal asset may be taken into account – the equalization of family property would be unconscionable in the circumstances of this case.

[37] The steps to be taken when s. 5(6) is engaged are well-established. The court must first ascertain the net family property of each spouse, by determining and valuing the property each owned on the valuation date (subject to the deductions and exemptions set out in s. 4). Next, the court applies s. 5(1) and determines the equalization payment. Finally – and before making an order under s. 5(1) – the court must decide whether the equalization of net family properties would be unconscionable under s. 5(6), having regard to the factors listed in paragraphs 5(6)(a) through (h). See Rawluk v. Rawluk 1990 CanLII 152 (S.C.C.), [1990] 1 S.C.R. 70 at pp. 93-94; Berdette v. Berdette reflex, (1991), 3 O.R. (3d) 513 (C.A.), at pp. 525-526; Stone v. Stone 2001 CanLII 24110 (ON C.A.), (2001), 55 O.R. (3d) 491, at para. 39; LeVan v. LeVan 2006 CanLII 31020 (ON S.C.), (2006), 82 O.R. (3d) 1 (S.C.J.).

[46] In my opinion, a court may take into account a post-separation date change in the value of a spouse’s assets, and the circumstances surrounding such a change, for purposes of determining under s. 5(6) of the Family Law Act whether equalizing net family properties would be unconscionable. An order for an unequal division of net family properties is exceptional, however, and may only be made on such a basis (i) where the circumstances giving rise to the change in value relate (directly or indirectly) to the acquisition, disposition, preservation, maintenance or improvement of property (s. 5(6)(h)), and (ii) where equalizing the net family property would be unconscionable, having regard to those circumstances (taken alone or in conjunction with other factors mentioned in s. 5(6)).

[47] In this regard, the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: see Merklinger v. Merklinger reflex, (1992), 11 O.R. (3d) 233 (Ont. Gen. Div.), aff’d 1996 CanLII 642 (ON C.A.), (1996), 30 O.R. (3d) 575 (C.A.); Roseneck v. Gowling 2002 CanLII 45128 (ON C.A.), (2002), 62 O.R. (3d) 789 (C.A.); McDonald v. McDonald reflex, (1988), 11 R.F.L. (3d) 321 (Ont. S.C.); and LeVan (S.C.J.).

I note, for example, the following comments of Backhouse J. in LeVan, and of Jennings J. in Merklinger:

LeVan, at para. 258:

“Unconscionability” is a much more difficult test to meet than “fairness” and as a result, the courts have only minimal discretion to order anything other than an equal division of family property. Unconscionable conduct has been defined as, among other things, conduct that is harsh and shocking to the conscience, repugnant to anyone's sense of justice, or shocking to the conscience of the court. [Citations omitted].

Merklinger, at para 54:

Section 5(6) of the Family Law Act, 1986 permits me to order an unequal allocation of value if to do otherwise would be unconscionable. The legislature deliberately chose to strictly define the severity of the result of the application of s. 5(1) which must pertain before there can be any judicial intervention. The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable. [Emphasis added].

[49] However, it does not follow that because the threshold is exceptionally high the factors to be taken into account in assessing whether that threshold has been crossed should not include post-separation changes in the value of a spouse’s assets and the circumstances surrounding that change. In an article published after the trial decision in LeVan, but before the argument on appeal, Professor Bala stated:[12]

It is submitted that while the outcome in LeVan may well be correct, the courts should interpret the vague, general words of s. 5(6)(h) to include the factor of a post-separation decline in property values that renders an equalizing of net family properties as evaluated on separation date to be unconscionable. It seems inappropriate for there to be judicial recognition only of post separation increases in property values, with post-separation declines ignored, even in situations of “unconscionability.” While in some circumstances it is appropriate to expect the titled spouse to dispose of the assets after separation or bear the full risk of not doing so, there are circumstances when such a disposition would be unreasonable.

[50] I agree. This is precisely one of those situations.

[51] Elmer E. Driedger first articulated what is now accepted as the guiding principle of modern statutory interpretation when he said:[13]

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

This principle has been adopted as the standard by the Supreme Court of Canada on numerous occasions. See, for example, Rizzo & Rizzo Shoes Ltd., Re, 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, at para. 26.

[52] The rationale behind the statutory direction in s. 5 of the Family Law Act that net family property is to be shared equally – with the rare exception provided in s. 5(6) – is set out in s. 5(7) of the Act:

The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). [Emphasis added.]

[53] This rationale is affirmed in the preamble of the Act, which states:
Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children; [Emphasis added.]

[54] There is a jurisprudential theme running through the cases to the effect that relief may only be granted under s. 5(6) where there has been fault-based conduct on the part of the asset-owning spouse, that is, that the word “unconscionable” embraces factors relating to “unconscionable conduct” only: see, for example, von Czieslik v. Ayuso 2007 ONCA 305 (CanLII), (2007), 86 O.R. (3d) 88 (C.A.); LeVan; and Merklinger. In von Czieslik, for instance, Lang J.A. noted in obiter, “the legislative restriction of s. 5(6)’s application to certain enumerated circumstances, none of which have to do with ownership, but all of which relate to fault-based conduct on the part of the other spouse” (at para. 29).

[55] Respectfully, I do not think this proposition is correct. First, it is clear that not all of the enumerated circumstances in s. 5(6) relate to fault-based conduct on the part of a spouse. Three of them – 5(6)(a), (b) and (d) – do. Four of them – 5(6)(c), (e), (f) and (g) – do not. One – 5(6)(h), the general basket clause at issue here – may or may not arise in conduct-related circumstances. Accordingly, there is no basis for concluding that the general basket clause in the list must take its colour and meaning from a previous list of specific conduct-based factors and, therefore, that the “circumstances” referred to must themselves embody fault-based conduct. That is not the case.

[56] Secondly, neither the purpose or object of the s. 5 equalization payment scheme, the s. 5(6) exception, nor of the Act itself call for such an interpretation. The design of the legislation is to promote the goals of certainty, predictability and finality in the resolution of property matters following the breakdown of marriage. This, in turn, is founded on the central premise articulated in s. 5(7) that “inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of [their joint] responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).” (emphasis added)

[57] Thus, to ensure adherence to the policy choices made by the Legislature, and reflected in s. 5(7) and the preamble of the Act, equalization of net family properties is the general rule. As with most rules, however, there are exceptions – in this case, the high-threshold unconscionability provisions of s. 5(6). This exception is expressly contemplated by the caveat “subject only to the equitable considerations set out in subsection (6)” set out in s. 5(7). Judicial discretion with respect to equalization payments is therefore severely restricted, by statutory design, but it is not eliminated altogether since there is discretion to order an unequal payment where “the court is of the opinion that equalizing the net family properties would be unconscionable”: see, for example, Skrlj v. Skrlj reflex, (1986), 2 R.F.L. (3d) 305 at p. 309 (Ont. S.C.).

[58] There is no principled reason that I can see, given the language of the Act and its purpose or objects, to confine the word “unconscionable” in s. 5(6) only to circumstances arising from fault-based conduct on the part of one of the spouses. Although unconscionable conduct is obviously an appropriate consideration in determining whether equalizing the net family properties would be unconscionable, in my opinion the true target of the limited exception to the general rule is a situation that leads to an unconscionable result, whether that result flows from fault-based conduct or not.

[59] I do not read this Court’s decision in von Czieslik as requiring anything to the contrary. That case evolved out of pre-separation misconduct on the part of the husband. He had “gifted” a large portion of his assets to a friend just prior to the separation, thus reducing his net family property and frustrating his former wife’s right to share in what had been accumulated during the marriage. It was in this context that Lang J.A., understandably, focussed on the “fault-based conduct” of the husband. However, the s. 5(6) issue in the case was whether, in making a s. 5(6) award, courts are restricted to the difference between the parties’ net family properties (the court held it was not). The issue was not, as here, whether post-separation circumstances that do not involve misconduct on the part of the asset-owning spouse may be taken into account.


[64] It is worth emphasizing that the legal issue in question here is whether a market-driven decline in value of a spouse’s assets post-separation may be considered as a factor in determining whether an equalization of net family property is unconscionable under s. 5(6). Concluding that it may be considered as a factor does not lead necessarily to a finding on the facts that an equalization order would be unconscionable. This is an important distinction, in my view, and may sometimes be overlooked in the heat of the debate over finality and certainty versus discretionary fairness.

[65] Although a purely market-driven decline in the value of Mr. Serra’s principal asset is at the heart of these proceedings, this case is not about whether a significant post-separation drop in the value of an individual’s stock portfolio, precipitated by a deep but temporary recession, will amount to unconscionability. Such an occurrence may well be a factor for consideration under s. 5(6)(h), but whether it would be sufficient by itself to constitute “unconscionability” is quite another matter. Each case must be determined on its own facts. In the circumstances here, however, I am satisfied that an equalization of net family property would be unconscionable, given the dramatic downward turn in Mr. Serra’s fortunes and the factors giving rise to, and surrounding, it.

[66] This is not a situation where any of the other factors listed in clauses (a) through (g) of s. 5(6) come into play to be weighed in the analysis against the market-driven decrease in value. For example, there is no fault-based conduct on the part of Mr. Serra that could – if it existed – be evaluated in the s. 5(6) analysis against the market-driven factors affecting his assets, as there was in such cases as LeVan, von Czieslik and others.[14] As the trial judge noted, “[t]here is no suggestion that the decline in the value of the business is other than market-driven.” Nor – for reasons mentioned above – is this a situation like LeVan where Mr. Serra could have disposed of the business (or of his shares in it) as a hedge against their downward trend in value, another factor that could otherwise be considered in the mix. It was necessary to keep Ajax Textiles afloat to enable him to continue to meet the interim support and capital obligations he had been ordered to pay.

[67] In these circumstances, an equalization of net family property that requires Mr. Serra to pay more than his total net worth (and arguably as much as twice his net worth) because of a marked decline in the value of his major asset post-separation – over which he had absolutely no control and in spite of his best efforts to save the business in the face of Ms. Serra’s trust claims, the preservation order and the need to comply with his support obligations – is, in my view, unconscionable. In so concluding, I have taken into account that Ms. Serra is not a woman without means. The trial judge found she left the marriage “with assets worth a considerable amount.” She has net family property of about $1 million in addition to her interest in the Florida property. She has lived, and continues to live, a life of relative luxury, 6 months in Canada and 6 months in Florida. The trial judge found she had been “very well compensated” for her contributions to the business during the course of the marriage...."

Tuesday, February 10, 2009

Family Law Case Bifurcation: Simioni v. Simioni
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"...[3] Two fundamental procedural questions are to be determined by the Court on this motion. First, should Denis be granted an order splitting the issues in this marital dispute and directing that a first trial be held respecting the validity of the Separation Agreement, and if so, on what terms? Regardless of the answer to that question, a second question remains whether and to what extent Silvana is entitled to now have the full financial disclosure she seeks.

[15] First, it should be accepted as non-controversial that both the Family Law Rules and the inherent jurisdiction of the Court provide ample authority and power to permit cases such as this to be split: Family Law Act, section 2(10); Rule 12(5). The jurisprudence confirms that this is an authority and power that ought to be exercised if convenient, and if the exercise of the power would be in the interests of justice. The interests of justice will be served if there are clear time and expense benefits to be gained from the bifurcation and determination of the threshold issue, provided no real or meaningful prejudice is caused to either party: Elcano Acceptance Ltd. et al v. Richmond, Richmond, Stambler & Mills, [1986] O.J. No. 578 (O.C.A.); General Refractory Companies of Canada v. Venturedyne Ltd., [2001] O.J. No. 746 (S.C.J.O.); Royal Bank of Canada v. Kilmer van Nostrand Co., [1994] O.J. No. 1476 (Ont. Ct. Jus.(Gen. Div.)).

[16] Nevertheless, it is equally important to remember that the splitting of a trial effectively denies the fundamental principle that as far as possible, multiplicities of proceedings are to be avoided, and thus the power to split a case should be regarded as one that is narrowly circumscribed and to be exercised in only the clearest of cases – in cases that exhibit the exceptional merit that calls upon the Court to exercise its inherent power: Courts of Justice Act, section 138; Elcano, above; Carriero (Litigation Guardian of ) v. Flynn, [2004] O.J. No. 3117 (S.C.J.O.). In light of this caution, the onus necessarily lies upon the party seeking to bifurcate to satisfy the Court on a balance of probabilities that if granted, severance will result in the “just, expeditious and least expensive determination of the proceeding on its merits”.: Merck & Co. v. Brantford Chemicals Inc., [2004] F.C.J. No. 1704 (F.C.C.) at para 4.

38] The reason claimed for this extraordinary request appears to be essentially cost and complexity related. There is no doubt that Denis’s financial affairs will be complicated and I expect disclosure will entail substantial expense. The tip-of-the-iceberg history of his and Silvana’s financial affairs reflected in the motions materials, and summarized above, make that evident beyond doubt. He has been a very successful businessman, and the enormous success of Ojon Corporation leading to its ultimate sale to the Estee Lauder Corporation for a substantial sale price following an estate freeze undertaken by Denis, unquestionably will have added to the complexity of his financial life. I accept that there will be significant cost entailed in providing financial disclosure in this case, involving accounting and tax experts and the expenditure of significant time and effort. I accept that without a determination of the validity of the Agreement, full blown disclosure would entail the production of marriage date value, separation date value for two separate dates, value at the Separation Agreement date, and current value.

[39] These factors, however, do not eliminate the need for Denis to comply, at least in part, with the disclosure obligations imposed upon him under our law. As Perell J. noted at paras. 13-14 of Boyd v. Fields, 2006 CarswellOnt 8675, adopting the approach of Rogers J. in Chernyakhovsky v. Chernyakhovsky, [2005] O.J. No. 944, the disclosure obligations mandated by the Family Law Rules are the be considered in light of Rule 2(3), and obtaining factual evidence in marital litigation is no longer to be “a game of hide and seek.” Equally, however, it is not to be used to cause delay or reap tactical advantage. The Court has to consider the burden imposed by the disclosure sought relative to its probative value, how it fits into the overall context of the case and whether it relates to a central issue in the case or only to matters on the periphery.

46] For reasons set out above, I have concluded that Denis’s motion to bifurcate ought to succeed, although as will be evident on different terms than those proposed. I reject Silvana’s contention that she will be severely prejudiced by a decision to bifurcate this proceeding as a result of the scarcity of resources available for future trial sittings, with these matters possibly not being resolved for three years or more. I reject that contention, not on the basis that it is not possible that she might not otherwise be correct, but rather on the basis that in circumstances where this Court determines to permit the extraordinary procedural remedy of trial bifurcation, as it intends to do in this case, the obligation rests with the Court to structure the procedure relating to the future progress of the severed litigation to ensure that the objectives of bifurcation are achieved. Those objectives are a speedier and more cost effective resolution of as many of the issues in the dispute as possible. I can assure both parties that I intend to ensure that these goals continue to be achieved, as I hope my orders in this matter will make clear.

47] Order to go as follows:

(a) Order severing trial and ordering that a trial of issues first be held relating to the validity of the June 29, 2007 Separation Agreement between Silvana Simioni and Denis Simioni;

(b) Counsel to prepare for me a proposed timetable and schedule of steps under which the litigation of the validity of the June 29, 2007 Separation Agreement will proceed to trial, such schedule to be provided to me not later than March 15, 2009. They may attend on me or arrange a teleconference as part of that process;

(c) Within a period of time to be determined by me after consultation with counsel under (b), and following their consultation with appropriate accounting and taxation advisers, Denis Simioni shall produce a Financial Statement as required by Rule 13 of the Family Law Rules as at June 29, 2007, as well as section 8 of the Family Law Act, and section 21(2) of the Federal Child Support Guidelines;

(d) Within a period of time to be determined by me after consultation with counsel under (b), Denis Simioni shall produce all minute books, closing books, constating and valuation documentation relating to the estate freeze of Ojon Corporation shareholdings, or any other corporation in which he may have had an interest prior to June 29, 2007;

(e) Questioning of the parties, to the extent not already completed, shall proceed on all materials necessary to permit the first trial to proceed on an expedited basis;

(f) I am to be designated as Case Supervision judge for this litigation, and no motions or other pretrial steps are to be taken by either party except in consultation with and as ordered by me..."

Imprisonment for Failure to Pay Support under a Temporary Order under FRSAEA: and Mootness
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"...[1] This is a somewhat unusual appeal. The issues between the appellant and respondent are no longer contentious. The appellant (the “Director”) all but concedes that the appeal should be dismissed and the order of Kent J. affirmed. However, the Director submits that there is uncertainty regarding the power to make an order directing imprisonment upon default in payment under the terms of a temporary order made pursuant to s. 41(14) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (“FRSAEA”). The Director asks this court to confirm the existence of the power to make that order where circumstances warrant. Additionally, the Director submits that, assuming the power to make the order exists, this court should identify the steps judges should take to ensure that the proposed subject of the committal order is treated fairly when the order is made.


(1) The statutory power to make a temporary order for support that includes a term directing imprisonment upon default in payment.

[26] The constraints on the use of imprisonment where the payor fails to comply with an order made at the end of a default proceeding have full application to non-compliance with temporary orders made in those proceedings. At least two additional factors suggest further caution. First, presumably the adjournment of the hearing indicates that the court is satisfied that the full merits of the default hearing should be addressed at a subsequent time. Courts should be hesitant to order the potential imprisonment of the payor absent the full inquiry into the merits of the proceedings. Second, where the matter is adjourned, presumably the payor will be back before the court within a relatively short time. Any failure to comply with the temporary order may well be more appropriately addressed when the default proceeding is back before the court.[3]

(2) The appropriate procedure where the court proposes to impose a committal order

[27] Counsel advise that the payor is often unrepresented in default hearings. We will assume that the payor is unrepresented in considering the steps that a court should take to ensure that a payor is treated fairly before making a committal order as a term of a temporary order under s. 41(14). Counsel agree that, before making a committal order, the court must be satisfied that the payor is aware of the nature and effect of the proposed committal order and is given a fair opportunity to speak to the appropriateness of the imposition of a committal order in the circumstances.

[28] Counsel for the respondent favours a more formal process involving the taking of evidence under oath and giving the payor an opportunity to call evidence and cross-examine witnesses. Counsel for the Director submits that the level of formality suggested by counsel for the respondent is neither necessary, nor appropriate. He makes the point that temporary orders are made in the context of the adjournment of the default hearing. Counsel for the Director suggests, correctly in our view, that the formalities associated with a full hearing on the merits are not necessary when settling the terms of an adjournment.

[29] In our view, the courts that conduct default hearings are better positioned than this court to appreciate and address the demands of fairness in any given circumstance. However, a few broad observations may be helpful.

[30] The liberty of a payor who is potentially the subject of a committal order is put in jeopardy if the order is made. At a minimum, fairness in the context of a proposed order that could result in imprisonment requires that:

• the court explain to the payor the nature of the proposed committal order and the effect it could have on the payor’s liberty;

• the court explain to the payor why it is considering making the committal order; and

• the payor be given an opportunity to respond to the reasons offered by the court and to advise the court of any additional facts that may be relevant to the court’s decision to make the order.

[31] It is best left to the wisdom of individual judges in individual cases to decide exactly how to ensure that the payor is given the necessary information and the opportunity to put his or her position forward. We do, however, accept that the context in which the proposed order is being considered must be borne in mind in deciding what steps are necessary to ensure that the payor is treated fairly. Where the order in issue is a term of an adjournment sought by the payor, it would not be helpful to impose a procedural regime that would effectively result in adjournments to gather further information so that the terms of the adjournment could be settled. The common sense of the courts conducting these hearings will no doubt prevail.

[32] We also think that if the court concludes that a committal order is a proper term of a temporary order, the court should make the adjournment of the default proceedings as short as the circumstances reasonably permit, thereby hopefully reducing the risk of non-compliance..."