Legal Feeds Blog
Former Toronto Maple Leafs player Mike Zigomanis has won a lawsuit against D’Angelo Brands after the company terminated its promotional contract with him over a nude photo scandal.
|Eli Lederman of Lenczner Slaght Royce Smith Griffin LLP says if a company wants to include a morality clause in an agreement it should make sure to structure it as broadly as possible.|
The company also cited Zigomanis’ demotion to a minor league team as a reason it terminated the contract. Zigomanis played the first eight games of the 2010-2011 season for the Maple Leafs before being sent down to the team’s American Hockey League affiliate, the Toronto Marlies.
Zigomanis sued for wrongful termination and demanded $162,000 in unpaid income.
The contract contained a termination clause that gave D’Angelo the right to termination if Zigomanis was convicted of a crime, spoke ill of the company in public, or committed “any act which shocks, insults of offends the community, or which has the effect of ridiculing public morals and decency.”
The contract, however, made no mention of any requirement that Zigomanis play for the Maple Leafs for its duration.
D’Angelo Brands argued that the nude photo incident should fall under the “morals clause.”
Stinson, however, found the incident could not fall under the clause as the nude photos were taken before the contract was signed in May 2011.
“For the defendant to rely on past conduct as justification for termination, is an attempt to insert into the contract an additional clause amounting to a warranty of past good conduct,” Stinson wrote in the decision.
As D’Angelo Brands had not inserted a clause concerning Zigomanis’ past personal conduct, the incident could not be applied retroactively, Stinson said.
Stinson also said that Zigomanis had an expectation of privacy when he sent the photos.
“In recent years, new methods of communication have emerged that enable individuals to exchange information via email, text message and in numerous other ways,” Stinson wrote.
“Many people choose to privately exchange intimate information and photographs in this fashion. This reality has been recognized and the privacy of such communications has been protected by the Parliament of Canada.”
Toronto lawyer Eli Lederman says the takeaway from the decision is that if a company includes a morality clause in an agreement, it should make sure to structure it as broadly as possible so that it covers conduct that predates and postdates the signing of the contract.
“If a contracting party wishes to protect itself in order to terminate a contract based on past conduct, then that would need to be expressly spelled out in the agreement,” says Lederman, a partner at Lenczner Slaght Royce Smith Griffin LLP, who was not involved in the case.
David Whitten, the lawyer who represented Zigomanis, and Gregory Hemsworth, who acted for D’Angelo Brands, did not respond to requests for comment.
In what lawyers are calling an unusual case, a Montreal hip-hop recording artist has successfully sued in small claims court in Québec over a takedown notice from three record labels.
|Noel Courage, a partner at Bereskin & Parr LLP suggests the case is unusual.|
The defendants — record labels Topdawg Entertainment Inc., Interscope Records and Universal Music Group — did not defend, and the Court of Québec’s small claims division ordered $5,000 in “moral and material damages” (damage to reputation, loss of income) payable to Jonathan Emile.
Noel Courage, a partner at Bereskin & Parr LLP who specializes in intellectual property, suggests the case is unusual. “I’ve … never noticed a case where someone sued over a takedown notice,” he told Legal Feeds.
“There are examples of people striking back against record companies,” he says, such as last year’s case in which Pennsylvania mother Stephanie Lenz won a case against Universal Music, which had sent a takedown notice to YouTube after Lenz posted a video of her toddler son dancing to a song by Prince. But he said he had never heard of an artist getting a takedown notice and suing.
“The Court seemed to say that the takedown affected the moral rights of the musician’s work or performance,” he adds. “Moral rights are the musician’s rights to the integrity of a work. These rights can be infringed if the work is modified without consent, and prejudices the musician’s reputation or honour. This is the first I have heard of the use of moral rights in response to a web music takedown.”
Erin E. Best, an associate and trademark agent at Stewart McKelvey in St. John’s, concurs. “I fail to see how this is properly framed as an infringement of the songwriter’s moral rights,” she told Legal Feeds by email. “Generally, moral rights come into play when a work is altered or used in a way that offends the morals of the creator. In this case the song in its entirety was taken down from the site . . . Perhaps the defendants’ allegations of infringement, if untrue, harmed the plaintiff’s reputation, but that is not an infringement of the plaintiff’s moral rights. Maybe a defamation action could be considered in those circumstances.”
Best, too, says she has never seen a case like this. “I have had cases where I reported an alleged [copyright] infringement to a social media site and successfully requested that the infringing work be removed. I have also had cases where I contested an alleged infringement and successfully had the work reinstated on the site. I have never seen a case like this one where the alleged infringer successfully sued the party who reported the infringement.”
She believes the defendants may appeal the decision “because the Judge seems to think that the defendants took down the song themselves” from YouTube and SoundCloud. If the defendants merely reported the alleged infringement to the site and the site took the song down, “then the plaintiff’s claim would be against the site, not the defendants. Such a claim against the site is unlikely to succeed if the plaintiff agreed not to sue, or to adhere to the site’s policies when he accepted the terms and conditions associated with the use of the site.”
The decision does not set “a strong precedent, because it’s a low level of court,” says Courage. However, “it may give companies pause before giving takedown notices.”
An Ontario Court justice who wore a Donald Trump-inspired “Make America Great Again” ball cap to court has since apologized, but many are arguing that it’s not enough.
|Kim Stanton says when it comes to evaluating courtroom behaviour, the issue isn’t what the person intended when they acted in a concerning way but the impact of their action on people around them.|
“It seems entirely inappropriate for a judge to make such a display in a Canadian courtroom, and in particular because his actions appear in support of Donald Trump’s win as president and that on its own would be problematic — to just bring partisan politics into the courtroom — but to associate yourself with someone who has become so associated with Islamophobia and misogyny and racism is another level,” says Kim Stanton, legal director of LEAF, the Women’s Legal Education and Action Fund.
“If you were to appear in front of him in court whether as a litigant, as an accused person, as a witness or as counsel, you would have to wonder whether he can adjudicate in an unbiased manner.”
On Nov. 14, five days after Justice Bernd Zabel entered the courtroom wearing the red hat with the campaign slogan used by president-elect Donald Trump in the recent U.S. election, LEAF submitted a letter of complaint to the Ontario Judicial Council.
Beyond appropriate sanctions for Zabel, Stanton says LEAF hopes the OJC will also ensure there is broader judicial training to restore the public’s trust in the judicial system.
“When the public sees a judge acting in a way that does not comport with impartiality, it really does hit the confidence of the public in the justice system,” she says. “We want the judicial counsel to take this seriously with an eye to addressing this loss of confidence."
Emmett Macfarlane, assistant professor, department of political science at the University of Waterloo, calls Zabel’s decision “profoundly foolish and inappropriate” and says it warrants the condemnation it has received.
“Whenever we talk about judicial independence, it’s about shielding or protecting judges and the judiciary from politics or political criticism, and we don’t sufficiently recognize that judicial independence is truly a two-way street,” he says.
If society is expected to buy into the notion that judges are neutral arbiters of the law, they can’t engage in this kind of behaviour, he adds.
“This is almost mind-blowing that this judge could even entertain this let alone follow through on doing something so silly.”
Zabel has since apologized for his actions in a statement in a courtroom in the John Sopinka Courthouse Tuesday morning, calling it a “misguided attempt to mark a moment in history by humour in the courtroom following the surprising result in the United States election.”
He said wearing the cap was a “lapse in judgment” and his intention was not to make a "political statement" or an endorsement of Trump’s controversial views.
"I apologize for any offence or hurt caused by my thoughtlessness," he said.
But for Stanton, while she acknowledges it’s important he acknowledges his actions were not appropriate, she says that’s not enough — and she’s not surprised he would apologize now given that there are complaints being made to the judicial counsel. She says LEAF has no intention of withdrawing its complaint and adds it’s incumbent upon the council to consider it regardless of the apologies.
“As with other aspects of equality law, the question isn’t really what the person intended when they acted in a concerning way, but the question is what was the impact of their action on the people in the courtroom.”
Macfarlane agrees the behaviour warrants some form of sanction, but he notes that if Zabel doesn’t have a track record, he doesn’t agree with those calling for his removal from office. He says that it is harsh for a one-off incident, but he adds that some official response is important because it’s not just about punishing one judge but about “making clear to the legal profession and society more broadly about why this is inappropriate and why judicial independence is important going both ways.
“Even if it was a plain cap with no logo or lettering, it would have been at a minimum odd but to a degree inappropriate,” he says. “If a lawyer walked in to a courtroom to speak before a judge wearing inappropriate attire, they could face sanction. The fact that it’s a cap of a political nature just exacerbates how absurd and problematic it is.”
The OJC is receiving a number of complaints, including one from the University of Windsor’s law school. David Tanovich, a law professor at the university, and 26 of his colleagues made a formal complaint on Nov. 15.
Stanton says she anticipates it will take a while for the judicial council to review the information from the multiple complaints and come to a decision regarding further action.
|McMillan partner Tim Murphy says McMillan Vantage Policy Group is a national full-service public affairs consultancy offering services to Canadian-based and international clients.|
McMillan announced today it has created McMillan Vantage Policy Group, a national full-service public affairs consultancy offering services to Canadian-based and international clients.
“Obviously, the traditional law firm model is under some pressure, that’s not news to anyone, but I think there are some paths to pick to respond to that,” says Tim Murphy, co-chair of the aboriginal, government relations group at McMillan. “Some have picked the international merger/be part of 4,000 lawyers option and we’ve taken the independent Canadian business approach. To make it work, you have to be innovative and that means driving new and different solutions all toward driving value for clients.”
It’s another in a series of announcements the firm has made this year about how it is adding to its menu of services for clients. In August, McMillan announced it was partnering with IBM to offer a pricing platform to clients.
“This is part two, which is to diversify the range of services offered to clients in a range of sectors and be responsive to what we’re hearing from them,” he says.
Murphy also hinted that the firm will release another significant announcement by the end of the year, but it won’t be merger related.
Working through its offices in Ottawa, Toronto, Montreal, Calgary, Vancouver and Hong Kong, McMillan Vantage Policy Group will offer government relations counsel, policy and regulatory analysis and strategic communications to private-sector clients.
“[Hong Kong] is a market where there is significant investor interest in Canada from China and that is one thing they need to get a handle on; it’s not just the legal environment but policy and political environment and we help provide those answers,” Murphy says.
Murphy, who was co-chairman of Ontario Premier Kathleen Wynne’s last election campaign and chief of staff to former prime minister Paul Martin’s Liberal government, said the firm realized it had “bench strength” in terms of those with a high level of experience in government with the public service.
“We felt we needed to put a structure around it and have a package we can offer the clients to help them on the legal side as well as public affairs and policy/communications function,” he says.
In addition to Murphy, members of McMillan Vantage Policy Group have counselled prime ministers and premiers and held political office.
The team is politically diverse, from across the country and includes Murphy, Charles Chevrette, Timothy Cullen, Stockwell Day, Dwight Duncan, Mary Flynn-Guglietti, Annik Forristal, Richard Jones, Robin Junger, Richard Mahoney, Mark Resnick, John Reynolds and Mike Richmond. They are joined by Robyn Osgood, who will lead the strategic communications practice of the consultancy.
Collectively, they have experience in areas such as energy, transportation, health care, telecommunications, indigenous affairs, manufacturing, financial technology, agriculture, infrastructure, trade, financial services, aviation, procurement and communications at the federal, provincial-territorial and municipal levels.
A key feature of the new consultancy is the McMillan Vantage Advisory Board chaired by McMillan Vantage managing director Richard Mahoney. Its members include former federal and provincial cabinet ministers, deputy ministers, party leaders and campaign chairpersons, as well as media and issue management experts. Advisory board members will vet proposed client strategies and communications, simulating the scrutiny clients often face as they deal with stakeholders such as governments, regulators, shareholders, customers and the media.
“Our clients lead national and international corporations, and many operate in complex regulatory environments,” said Murphy, also managing director of McMillan Vantage. “They expect sophisticated public affairs counsel that advances key issues and priorities, reducing the risk to which their organizations are exposed.”
Clients will benefit from an integrated approach to public affairs, strategic communications and legal counsel thanks to McMillan Vantage Policy Group’s affiliation with McMillan LLP, says the firm.
“Whether it is helping navigate environmental regulations, advising on a merger or acquisition, consulting with First Nations/Métis/Inuit groups or creating and executing an advocacy campaign, our goal is to provide clients with strategic thinking and executive-level counsel that deliver long-term success,” said Mark Resnick, McMillan Vantage managing director.
Halifax police seek information after man shot and killed, Canadian Press
- Committee will be trying to attract more members in Western Canada
A Vancouver lawyer has been elected as the new vice chairwoman of the ICC Canada Arbitration Committee.
Tina Cicchetti, a partner at Fasken Martineau DuMoulin LLP and member of the firm’s litigation and dispute resolution group, will serve two years as the committee’s vice chairwoman, before becoming the committee’s chairwoman.
|Tina Cicchetti says the ICC Canada Arbitration Committee is seeking to expand its membership in Western Canada.|
ICC Canada has 124 members across Canada, and its members can participate in the International Chamber of Commerce’s International Court of Arbitration.
The court describes itself as “the world's leading body for the resolution of international disputes by arbitration.”
Cicchetti says the mission of the committee is to expand the use of international arbitration by Canadian business and to ensure practitioners are knowledgeable and can provide good service to Canadian companies.
“Canada, for being a small arbitration market and a small economy, relatively speaking, has a number of practitioners who are really highly regarded internationally,” she says.
Cicchetti says the focus of work done by Canadian members is commercial arbitration between parties, although it does do a fair amount of work related to administering investor state disputes, especially when it comes to contractual disputes involving state-owned entities with investors or contractual parties.
Current issues facing the committee include the importance of cybersecurity and proposed solutions, such as the use of secure sites for transferring materials.
“I think it’s a hot issue because it’s become an issue more widely,” says Cicchetti.
“One of the perceived benefits of arbitration is the fact that it’s private and often confidential, so you’re going to the extent of choosing a dispute resolution procedure that is confidential and then you are managing it in a way that potentially exposes it to hacking, for example, because a lot of the stuff is high value [and] often would be of interest to business rivals, state entities, other things.
“You can imagine a situation where that information would be targeted.”
The committee is also waiting on provincial governments across Canada to update international arbitration statutes.
“That’s one of the things we’re working on, is making sure that those statutes get updated, because those statutes affect any arbitration seated within the various jurisdictions,” she says.
Cicchetti was elected to the role in October and assumed the position Oct. 15.
The committee’s current chairman is Stephen Drymer at Woods LLP in Montreal.
Cicchetti says one of her goals in this role will be to expand membership of the committee in Western Canada.
“I think this committee, it’s fair to say, represents the most active international arbitration practitioners in Canada, so we have a good cross-section of academics, practitioners, counsel and arbitrators and some good young members that have come up through YCAP, which is the Young Canadian Arbitration Practitioners,” says Cicchetti.
She says there are a few core firms with active international arbitration practices in Canada, and a number of other firms “that just have them crop up because they have clients who happen to have an international arbitration.”
In 2015, 40 Canadians were arbitrators with ICC International Court of Arbitration.
Most of the committee’s members are litigators, says Cicchetti, who have an interest or some experience in international arbitration. There are also members who are solicitors who do international deals and cross-border transactions, she says, or former in-house counsel who are current or past users of arbitration.
“Our goal is to make sure that everybody [who] is doing this work understands the full advantages of it and does a good job for their client,” she says.
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