Applebaum Conviction A Travesty

February 13, 2017

Montreal – It’s no surprise Montreal’s former-mayor Michael Applebaum was convicted of corruption. Everybody knows the dice are loaded, wrote Leonard Cohen.

The late Montreal songwriter knew of what he sang. But it is a surprise that the witnesses against Applebaum were the very people who admitted giving and receiving bribes, namely, Hugo Tremblay, Robert Stein, Anthony Keeler, and Patrice Laporte. The admitted guilty parties were not charged. The dice were loaded against the Jewish Anglophone Applebaum, who maintained his innocence throughout.

It’s a curious thing that Applebaum’s right-hand man Hugo Tremblay requested and then received a bribe of $30,000 from businessmen Robert Stein and his associate Anthony Keeler. Curious also that Tremblay demanded and received a $25,000 payoff from Laporte – supposedly in exchange for winning a service contract.

These were the only two occasions with which Applebaum is alleged to have participated in graft. No other occasions were alleged. In a political career that spanned a decade, these were the only two incidents of wrongdoing alleged against Applebaum. So how could it be that Tremblay was the requester and recipient of these bribes, of which Applebaum was charged?

Simple. When Tremblay got caught by the cops, he made an elaborate story to save his hide. He traded his guilt and a certain jail term for testifying against his former boss. A plea bargain made in Hell.

The one-time cocaine user, Tremblay, okay, maybe he used the stuff more than once, lived a higher than normal lifestyle with the excess salary he secured.

At trial, Tremblay claimed he turned over a portion of the illicit proceeds to Applebaum. But, alas, the cops could find not a scintilla of evidence to verify that detail. Not a scintilla.

In two days time Applebaum will be sentenced.* With a career in tatters, reputation destroyed, Applebaum faces time in the bighouse. It is a travesty.

 

* Sentencing delayed to March 30, 2017.

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Bombardier’s Bone

February 9, 2017

canada_flag3B

When noodle threw Bombardier a bone

He called it a free free-market loan

But Brazil knew better

How scarlet the letter

And the WTO will rule if Canada must atone.

What Do You Notice?

January 6, 2017

What do you notice? In every frightful occurrence each individual person sees differently, hears differently, and analyzes sights and sounds differently. Recently, I received two incident reports from VIA Rail related to the deaths of three boys on October 31, 2010. What do YOU notice about these two incident reports?via-incident-report1

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Simon Simpleman

December 6, 2016

In the dark forest adjoining Montreal

Lived a simple ogre, chunky, but not too tall

His eyes were wide, covered by glasses

And oddly, he had not one, but two asses.

He rode them simultaneously

Like a cowboy contemporaneously

But when he fell he fell like Steven Harper

Luckily, the asses’ hooves were not sharper.

Corporate Style vis-à-vis Lac-Mégantic

October 24, 2016

“The entire community of Lac-Mégantic remains in our thoughts and prayers as they continue to recover from this tragedy.”

        – Michael J. Kasbar, chairman and chief executive officer, World Fuel Services, June 8, 2015, upon providing $110 million for settlement in the Lac-Mégantic tragedy.

“CP denies liability and intends to vigorously defend against all derailment-related proceedings.”

             – CP 3rd Quarter Report, October 19, 2016. E. Hunter Harrison , CP Chief Executive Officer.

CP Rail: Incroyable – What a Shame!

October 22, 2016

from CP Third Quarter Report | 2016    (le français suit)

Legal proceedings related to Lac-Mégantic rail accident

On July 6, 2013, a train carrying crude oil operated by Montreal Maine and Atlantic Railway (“MMA”) or a subsidiary, Montreal Maine & Atlantic Canada Co. (“MMAC” and collectively the “MMA Group”) derailed and exploded in Lac-Mégantic, Quebec. The accident occurred on a section of railway owned by the MMA Group. The previous day CP had interchanged the train to the MMA Group, and after the interchange, the MMA Group exclusively controlled the train.

Following this incident, Quebec’s Minister of Sustainable Development, Environment, Wildlife and Parks (the “Minister”) ordered the named parties to recover the contaminants and to clean up the derailment site. On August 14, 2013, the Minister added CP as a party (the “Amended Cleanup Order”). CP appealed the Amended Cleanup Order to the Administrative Tribunal of Quebec. Those proceedings are pending. Directly related to that matter, on July 6, 2015, the Province of Quebec sued CP in Quebec Superior Court claiming $409 million in derailment damages, including cleanup costs. The province alleges that CP exercised custody or control over the crude oil lading and that CP was otherwise negligent. Therefore, CP is said to be solidarily (joint and severally) liable with third parties responsible for the accident. The province’s lawsuit was stayed until September 12, 2016, but has since been reactivated. The province has filed a motion for leave to amend its complaint, which motion will be heard by the court on November 8, 2016. Otherwise, no timetable governing the conduct of this lawsuit has been ordered by the Quebec Superior Court. On July 5, 2016, the Minister served a Notice of Claim for nearly $95 million of compensation spent on cleanup, alleging that CP refused or neglected to undertake the work. On September 6, 2016, CP filed a contestation of the Notice of Claim with the Administrative Tribunal of Quebec. These proceedings appear to be duplicative of the administrative proceedings.

A class action lawsuit has also been filed in the Quebec Superior Court on behalf of persons and entities residing in, owning or leasing property in, operating a business in or physically present in Lac-Mégantic at the time of the derailment (the “Class Action”). That lawsuit seeks derailment damages, including for wrongful death, personal injury, and property harm. On August 16, 2013, CP was added as a defendant. On May 8, 2015, the Quebec Superior Court authorized (certified) the Class Action against CP, the shipper – Western Petroleum, and the shipper’s parent – World Fuel Services (collectively, the “World Fuel Entities”). The World Fuel Entities have since settled. The plaintiffs filed a motion for leave to amend their complaint, which motion will be heard by the court on November 10, 2016. Otherwise, the court has set no timetable to govern the conduct of this lawsuit.

On July 4, 2016, eight subrogated insurers served CP with claims of approximately $16 million. On July 11, 2016, two additional subrogated insurers served CP with claims of approximately $3 million. The lawsuits do not identify the parties to which the insurers are subrogated, and therefore the extent of claim overlap and the extent that claims will be satisfied after proof of claim review and distribution from the Plans, referred to below, is difficult to determine.

In the wake of the derailment and ensuing litigation, MMAC filed for bankruptcy in Canada (the “Canadian Proceeding”) and MMA filed for bankruptcy in the United States (the “U.S. Proceeding”). Plans of arrangement have been approved in both the Canadian Proceeding and the U.S. Proceeding (the “Plans”). These Plans provide for the distribution of a fund of approximately $440 million amongst those claiming derailment damages. The Plans also provide settling parties broadly worded third-party releases and injunctions preventing lawsuits against settlement contributors. CP has not settled and therefore will not benefit from those provisions. Both Plans do, however, contain judgment reduction provisions, affording CP a credit for the greater of (i) the settlement monies received by the plaintiff(s), or (ii) the amount, in contribution or indemnity, that CP would have been entitled to charge against third parties other than MMA and MMAC, but for the Plans’ releases and injunctions. CP may also have judgment reduction rights, as part of the contribution/indemnification credit, for the fault of the MMA Group. Finally, the Plans provide for a potential re-allocation of the MMA Group’s liability among plaintiffs and CP, the only non-settling party.

An Adversary Proceeding filed by the MMA U.S. bankruptcy trustee (now, estate representative) against CP, Irving Oil, and the World Fuel Entities accuses CP of failing to ensure that World Fuel Entities or Irving Oil properly classified the oil lading and of not refusing to ship the misclassified oil as packaged. The estate representative has since settled with the World Fuel Entities and Irving Oil and now bases CP misfeasance on the railroad’s failure to abide in North Dakota by a Canadian regulation. That regulation supposedly would have caused the railroads to not move the crude oil train because an inaccurate classification was supposedly suspected. In a recently amended complaint, the estate representative named a CP affiliate, Soo Line Railroad Company (“Soo Line”), and asserts that CP and Soo Line breached terms or warranties allegedly contained in the bill of lading.

In response to one of CP’s motions to withdraw the Adversary Proceedings bankruptcy reference, the estate representative maintained that Canadian law rather than U.S. law controlled. The Article III court that heard the motion found that if U.S. federal regulations governed, the case was not complex enough to warrant withdrawal. Before the bankruptcy court, CP moved to dismiss for want of personal jurisdiction, but the court denied the motion because CP had participated in the bankruptcy proceedings. CP and Soo Line will respond to the estate representative’s recently amended complaint during the fourth quarter of 2016.

Lac-Mégantic residents and wrongful death representatives commenced a class action and a mass action in Texas and wrongful death and personal injury actions in Illinois and Maine. CP removed all of these lawsuits to federal court, and a federal court thereafter consolidated those cases in Maine. These actions generally charge CP with misclassification and mis-packaging (that is, using inappropriate DOT-111 tank cars) negligence. On CP’s motion, made on September 28, 2016, the Maine court dismissed all wrongful death and personal injury actions on several grounds. If the ruling is upheld on any appeal that might be brought, these cases will be litigated, if anywhere, in Canada.

CP has received two damage to cargo notices of claims from the shipper of the oil, Western Petroleum. Western Petroleum submitted U.S. and Canadian notices of claims for the same damages and under the Carmack Amendment (49 U.S.C. Section 11706) Western Petroleum seeks to recover for all injuries associated with, and indemnification for, the derailment. Both jurisdictions permit a shipper to recover the value of damaged lading against any carrier in the delivery chain, subject to limitations in the carrier’s tariffs. CP’s tariffs significantly restrict shipper damage claim rights. Western Petroleum is part of the World Fuel Services Entities, and those companies settled with the trustee.

On April 12, 2016, Trustee (the “WD Trustee”) for a wrongful death trust (the “WD Trust”), as defined and established under the confirmed Plans, sued CP in North Dakota federal court, asserting Carmack Amendment claims. The WD Trustee maintains that the estate representative assigned Carmack Amendment claims to the WD Trustee. The Plan supposedly gave the estate representative Carmack Amendment assignment rights. The WD Trustee seeks to recover losses associated with the lost lading (approximately $6 million), as well as the settlement amounts the consignor (i.e, the shipper, the World Fuel Entities) and the consignee (Irving Oil) paid to the bankruptcy estates, alleged to be $110 million and $60 million, respectively. The WD Trustee maintains that Carmack Amendment liability extends beyond lading losses to cover all derailment related damages suffered by the World Fuel Entities or Irving Oil. CP disputes this interpretation of Carmack Amendment exposure and maintains that CP’s tariffs preclude anything except a minimal recovery. Canadian Pacific Railway Limited and Soo Line Corporation, both non-carriers, have moved to dismiss the Carmack Amendment claims, which only apply to common carriers.

At this early stage of the proceedings, any potential responsibility and the quantum of potential losses cannot be determined. Nevertheless, CP denies liability and intends to vigorously defend against all derailment-related proceedings.

– – – – – – – – – – – – – – – – – – – – – – – – – – –  – – –

du CP Rapport du troisième trimestre | 2016
Procédures judiciaires liées à l’accident ferroviaire de Lac-Mégantic

Read the rest of this entry »

Alberta Courts: A Course in Coarse

September 17, 2016

by Jack Locke

I know judges are human. I’ve known that since 1989.

But the recent revelations making headlines, the Justice Denny Thomas obvious error in the Travis Vader murder case, and the Justice “why-didn’t-you-keep-your-knees-together” Robin Camp hearing at the Canadian Judicial Council, perhaps have a connection to my experience.

You see, I was a one case litigator. That should be more than enough for most people. I don’t recommend it.

I first entered court in 1989. My claim against the City of Calgary was a charter challenge to a municipal by-law. Now, I don’t claim to be a Perry Mason – Perry who? Okay, I’m showing my age. Perry Mason was a fictional television lawyer extraordinaire from 1957–63 and originally the lead character in a series of novels by Erle Stanley Gardner.

But I was just an ordinary Canadian miffed by a dumb law. So I went to court. The first thing that happened to me was my case was thrown out before trial. In a slick procedural manoeuvre, the City had the case dismissed because I was alleged not to have drafted the paperwork correctly. Of course that was horse shite.

The Alberta Court of Appeal agreed with me. But it took a year and a half of my time.

After two more years of procedural wrangling, a seven-day trial was finally held.

I knew right off the bat I was in trouble when trial judge R.A.F. Montgomery questioned my right to call certain witnesses. I felt he had obviously taken sides with the opposite side.

But the kicker came one afternoon when the learned judge began pronouncing my last name with two syllables. It was incredulous – something Perry Mason never had to deal with. Locke is pronounced “lock”, one syllable only. What prompted this new exaggerated pronunciation of my name I can only surmise. The only thing missing was a following hiccup.

The judge ruled against me on all three legal issues. Moreover, he then slapped me with costs to the maximum level. Now, in the case of public interest law, where a citizen challenges a controversial piece of legislation, it is not unusual for costs not to be levied. But under the intoxicating circumstances, when Justice Montgomery assessed costs of $35,000, I was somewhat expecting it.

To this day, there has not been a review of the decision, nor behaviour, of now dearly-departed judge Montgomery. The appellate story is another story, and a good one. But I am certain there is a plethora of delicious court stories from Alberta.

So, when I see the cases of Denny Thomas and Robin Camp, I am wholly not surprised in the least. What section of the Criminal Code did the eminent jurist cite? And what’s wrong with a misogynist comment by a judge?

There needs to be a major housecleaning. The Supreme Court of Canada’s Chief Justice talks about lack of access for ordinary Canadians to the courts. Well Beverley McLachlin, who would want to appear in court anyway? Not me.

* * * *

Jack Locke is a freelance writer/poet/editor living in Quebec.

LONG Live King Arthur of the M.U.H.C.

July 11, 2016

Every now and now, I get lassoed by a subject, tied up and loosened up to write a poem. This time my object was the late Arthur Porter, former CEO of the McGill University Hospital Centre, and former Chair of Canada’s Security Intelligence Review Committee. Here’s my latest villanelle, LONG Live King Arthur of the M.U.H.C.

LONG live King Arthur of the M.U.H.C.
He was the penultimate freelancer
For he who dies before trial leaves a legacy.

From Sierra Leone came a doctor only
To care for the dying, dying of cancer
LONG live King Arthur of the M.U.H.C.

He learned to negotiate positively
A small payoff requires an expancer
For he who dies before trial leaves a legacy.

He was portrayed as an Englishman portly
But in boardrooms he was known as a slender dancer
LONG live King Arthur of the M.U.H.C.

Accused of malfeasance malevolently
Defended by a brilliant necromancer
For he who dies before trial leaves a legacy.

To his grave he will carry secrets sanctimoniously
As hungry ants dig hopeless for an answer
LONG live King Arthur of the M.U.H.C.
For he who dies before trial leaves a legacy.

 

 

Marc Garneau, Enough Is Enough

June 19, 2016
Train_in_Tunnel

A VIA Rail train exits the Turcot Tunnel in Montreal(file photo.)

by Jack Locke

I have a hard time forgiving Marc Garneau.

If Google can produce a car that drives without a driver, why can’t Canadian train drivers see people before they are killed on the tracks?

On June 10, when Cienna MacPherson, 17, and Joana Hofer, 18, were killed by a train in Lantz, Nova Scotia, I cursed Marc Garneau. That Garneau’s department, Transport Canada, fails to take bold action to prevent further deaths is shameful. Garneau’s failure as Minister of Transport is cause for reflection, if not resignation.

But Marc Garneau is not likely to resign.

On March 29 of this year, according to a Transport Canada tweet, Minister Garneau “met with members of the rail industry and stakeholders to discuss #RailSafety.” Big Canadian National deal. They politely chatted about railway safety and still Canadians die.

What is the point of meeting with the rail industry when trains continue to mow down Canadians every month?

According to Transportation Safety Board of Canada(TSB) statistics (http://www.tsb.gc.ca/eng/stats/rail/2016/04/r2016-04-t2.asp), in the first 4 months of 2016, there were 13 fatalities caused by trains hitting people, which the TSB labels as “trespassing.”

This label is repugnant, as it impugns wrongdoing by the victims. That’s an easy way for the Government of Canada to turn a blind eye and avoid responsibility and avert the urgent need to investigate these deaths. It is unconscionable to blame the dead victims. This is wrong and it must stop.

I know people will say that innocent young men and women must take ownership for their actions. Well, so do railway companies.

And if I can be frank, I find it really obnoxious for the Transportation Safety Board to tweet, as they did on June 8, “We investigate an occurrence when it can advance transportation safety and reduce risks.” That is patently untrue.

When 3 Montreal-area young men were killed by a VIA Rail train on Oct. 31, 2010, the government of the day quietly ducked their responsibility. Since that time, not a single transport minister (Chuck Strahl, Denis Lebel, nor Lisa Raitt) dared to stand up for Canadians on this issue. They ducked and dodged—not unlike the late great boxer Muhammad Ali—and were able to deflect criticism thrown against them.

Although Dylan Ford, Mitchell Bracken-Guenet, and Ricardo Conesa were killed by a VIA Rail train nearly 6 years ago, their deaths provided a pivotal opportunity for government to act. Yet nothing. VIA Rail must answer for why their train engineer never blew the train horn nor hit the brakes until after hitting these boys. Marc Garneau, if you have that answer you must make it public. If you do not have that answer, you must, should, pursue an answer.

No Minister of Transport was held accountable for the loss of 47 lives in Lac Megantic. Nor do additional train-related deaths seem to phase our government.

As Green Party leader Elizabeth May stated in 2011, there needs to be a Royal Commission to look into railway safety. The recent deaths in Lantz demands answers. And yet, we will watch how the Government of Canada responds. A smiling minister will outline what Canada is doing to improve railway safety and then more deaths will occur. Enough is enough.

It has been more than 5 months since I sent my Member of Parliament, Marc Garneau, an email requesting an opportunity to meet to discuss railway safety. I was concerned about railroad trains killing Canadians. Yet, only an automated reply.

“I believe the failure of Transport Canada and the Transportation Safety Board to investigate pedestrian/train accidents—the leading cause of death by trains—is an oversight that needs addressing. It is unacceptable to say these incidents are not preventable,” I wrote in my January 4, 2016  communication seeking a meeting.

Canadians deserve better. Canadians deserve a country that protects its citizens from death and danger.

Marc Garneau, are you listening?

Imagine Merrick Garland on Canada’s Supreme Court

May 1, 2016

by Jack Locke

With the foofaraw surrounding the appointment of Merrick Garland to the US Supreme Court, why doesn’t President Barack Obama just trade him to Canada? Yes, trade him to Canada.

Trade in its simplest form can be explained as: I give you, you give me.

As any sports fan knows, trade need not be confined to economics, goods, or money. Trade can be inserted in the area of law courts, ipso facto. Why not?

At present, the United States Supreme Court is missing one member on the bench, following the recent death of Justice Antonin Scalia. Whereas, Canada’s Supreme Court will become one member short now that Justice Thomas Cromwell has announced his resignation at the youthful age of 63. Yes, Thomas Cromwell, but not the 16th century lawyer who served King Henry VII.

Why not make a trade? One judge for one judge.

I know many in-the-box Americans will be thinking: the two countries have radically different laws. Yes. But what do laws have to do with justice? Really.

If you’ve ever had the occasion to read a Supreme Court decision, either Canadian or American, with majority or dissenting opinions, you’d know that the judgements are about legal ideas, abstract concepts, and occasionally the written law. Sometimes the ideas are ancient, steeped in historical conflict, and sometimes they are modern or novel.

And if you have read any number of decisions, you would know that justices of the court often disagree on what is the law. And that causes rancor within the family, so to speak. That’s why I propose a high-court marriage, a blending of two courts that are situated only 565 miles apart.

How two different countries define justice is good to know when you want to prevent wars from starting. And perhaps this model of judicial integration could one day prevent wars.

Both Canada and the US have borrowed many elements of our systems of justice from the British. Both countries have also deviated from the British. Yet, there remain striking similarities. All three countries highest courts attempt to define right and wrong. And in defining right and wrong, sometimes the court gets it right, sometimes wrong.

That’s why it is refreshing to add an outside voice to the ho-hum deliberations so judges don’t become too complacent inside their monastic institutions.

As supreme courts have evolved over time they have gone from being strictly composed of old, white men, to including women and different minority groups. This provides greater diversity of opinions, attitudes and perspectives and raises the caliber of justice. And even if trading judges did not improve the caliber, it likely would not lower it.

Exchanging judges between countries, however scary that sounds, would add to each court’s grasp of justice and differing world views.

It’s somewhat like food and cooking. You add a pinch of spice to the spaghetti sauce and the flavor is enhanced, enriched, improved. Of course, some people like their food bland, traditional, and identical to the flavor made by their grandparents’ grandparents. Think of judge trading as accentuating the continental palate.

The world is progressing, speeding up, changing. We can either move forward or we can try to slam on the brakes of this run-away chuckwagon we call globalization. I don’t recommend standing in front of that chuckwagon.

Canada in years past used to employ London’s Judicial Committee of the Imperial Privy Council to adjudicate our final legal appeals. And despite receiving some superb decisions(e.g. the Persons decision, 1929), we tired of being dictated to by old, white men with accents wearing wigs. We made a conscious decision to move into the 20th century in the middle of that century.

Now, Canada and the US (and dare I even suggest Mexico) have a unique opportunity to move into the 21st century.

We can open up the hallowed halls of justice—those rich wood-panelled chambers choked by stuffy air—by breathing new life into the corpus judicia. We can, we should, we must. The benefits would far outweigh the negative, I am confident.

As President Barack Obama is being thwarted in his attempt to have Merrick Garland confirmed to sit on the US Supreme Court, why not put him on the next bus to Ottawa? We’ll gladly take him.

And we’ll send you our #1 draft choice just as soon as Prime Minister Justin Trudeau picks one. Unlike the US, Canada selects, appoints and places justices all in one throwing motion. No need for a confirmation hearing.

In case you’ve forgotten, this would be called trade and it could be initiated through the President proposing a treaty to get the ball rolling.

But there could be one obstacle: lawyers. As soon as they get hold of the process, they’ll drag it out, delay it interminably, find faults, contest its merits, advise against, claim unconstitutionality, apply for an injunction, and of course, claim damages and costs.

Then comes an appeal.

I guess trading Supreme Court justices is not the only change we need. I rest my case.