Mounting lawsuits against alleged van attacker describes traumatic injuries

TORONTO — Traumatic brain injuries, spinal fractures and internal bleeding are among the litany of ailments described in a mounting number of lawsuits against a man accused of killing 10 people and injuring 16 others in a van attack in Toronto last year.

Lawyers involved in the suits against Alek Minassian believe the cases, which the court is working to pull together in one large proceeding, will take years to come to a resolution.

On April 23, 2018, police allege Minassian drove a white Ryder rental van south along Yonge Street in the city’s north end, hopped the curb and deliberately mowed people down.

While Minassian’s criminal case slowly makes its way through the system — his trial on 10 first-degree murder charges and 16 attempted murder charges has been scheduled for February 2020 — the 26-year-old already faces four civil suits, with more expected.

The lawsuits, from the families of one person who died and three who were injured, are seeking millions of dollars from Minassian and Ryder Truck Rental Canada, alleging the devastating injuries and deaths on that day were due to an intentional act by Minassian and negligence on his and the rental company’s part.

The unproven civil suits will be fought in the trenches of insurance law.

“This is going to drag on for a long, long time,” said Gus Triantafillopoulos, who represents the family of Anne Marie D’Amico, a young woman who died that day and whose family filed a $1-million suit in January against Minassian and Ryder.

Triantafillopoulos said if the family receives any money through the civil proceedings it will all be donated to the Anne Marie D’Amico Foundation, which supports women who are victims of violence.

The first suit related to Minassian was filed in November 2018 by Amir Kiumarsi, a chemistry instructor with Ryerson University who is seeking $6 million dollars in damages.

He suffered a traumatic brain injury and several skull fractures, spinal fractures, traumatic internal injuries including a displaced kidney and numerous other injuries throughout his entire body, the claim says.

“These injuries have been accompanied by severe physical pain, suffering and a loss of enjoyment of life,” the claim alleges, noting that his future holds “numerous surgical and medical assessments, treatments and procedures.”

Since Kiumarsi filed his suit, the court is in the process of getting all the cases on one track, documents show.

Another suit was filed in mid-January by Amaresh Tesfamariam and her family, who are seeking $14 million. Tesfamariam has a complete spinal cord injury, multiple spinal fractures, rib fractures and a traumatic brain injury.

She cannot move her body below her neck, cannot breathe without a machine, suffers a total loss of independence and a “profound and permanent loss of her cognitive ability,” according to the claim.

Tesfamariam also has loss of short-term memory, depression, anxiety, a “drastic personality change” and cannot communicate properly with others, and cannot return to her work as a nurse, the claim alleges.

The latest suit was filed last week by Catherine Riddell and her family, alleging the “sustained serious and permanent” injuries the woman suffered are the result of negligence on the part of Minassian and the rental company.

Riddell lost consciousness, suffered a brain injury, hurt her head, neck, shoulders, arms, back, legs and arms. She fractured her spine, her ribs, pelvis, scapula and suffered internal injuries including a collapsed lung, the $3.55 million suit alleges.

She lives with headaches, memory loss, difficulty finding words, dizziness, back and neck pain, loss of mobility, nausea, anxiety, nervousness, insomnia and depression, her claim alleges, noting that she now faces a life filled with therapy, rehabilitation and medical treatment.

“Her enjoyment of life has been permanently lessened and she has been forced to forego numerous activities in which she formerly participated,” the claim reads.

Minassian does not yet have legal representation in the civil matters and has not responded to the claims, according to the documents. His criminal lawyer did not respond to a request for comment.

The lawyers for Ryder, who did not respond to multiple requests for comment, detailed the expected complexities in the litigation in an affadavit filed with the court.

It notes that notice has been given for 12 claims and more are expected. There will be numerous parties in the case from families of the dead to the injured and the various defendants. There will be examinations for all plaintiffs, and testimony would be expected from numerous medical experts.

“It would be safe to assume this matter will require a lengthy trial,” said the affidavit.

Kiumarsi’s lawyer, Darcy Merkur, said there will be a slew of arguments brought forward.

“One interesting question is this: is every different person hurt considered a separate accident?” Merkur said. “It’s a legal question, but also a philosophical one.”

The answer to that question will be important to the issue of potential payments, he explained.

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source https://toronto.ctvnews.ca/mounting-lawsuits-against-alleged-van-attacker-describes-traumatic-injuries-1.4368140

By The Wall of Law April 6, 2019 Off

Suing A Neighbour Over A Tree? Be Prepared For Courts To Side With Nature

The poet Robert Frost wrote that good fences make good neighbours. He knew what he was talking about. When one person’s property is not clearly separated from the other’s, it creates opportunities for costly disputes.

Trees at or near a property line can create conflicts that end up with neighbours facing off against each other in court.

Sometimes a tree will break in a windstorm, damaging the neighbour’s house or car. The owner of the tree may or not be responsible. It will depend on the condition the tree was in. If it was known to have rotted, the owner may be liable for not having dealt with it earlier.

These disputes fall under the law of “nuisance.” That’s a common word, but also the legal term used when something on one property harms its neighbours. Nuisance is an area in which the judge has a lot of discretion.

Every claim of nuisance has its own unique facts. The judge has to use her own personal wisdom to determine what is fair and reasonable. One of the legal tests is “substantial interference.” Whether something is substantial is in the eye of the beholder. Going to court with such a claim carries risks. The outcome is seldom predictable.

Aerial view of a suburban neighbourhood.

A few years ago, an Ottawa homeowner installed a backyard swimming pool. To her misfortune, she soon found that the neighbour’s tree roots were encroaching on her property. They caused her pool to crack.

She sued her neighbour to have the tree removed, on the grounds that it was creating a nuisance on her property. The judge was not very sympathetic. He observed that modern society places a high value on the preservation of the “urban forest.” He told the pool owner that she would have to come back with a stronger argument, including showing that the problem could not have been anticipated before the pool was installed.

Another example of the respect given to trees was seen in a Toronto case decided in March of 2019, by Justice Ed Morgan of Ontario’s Superior Court.

A mature maple tree, with a diameter of more than a metre, was growing right smack dab in the middle of the property line. Who knew, when the wind dropped that seed all those years ago, the trouble this would cause?

The law says that a tree that is right on the lot line is the joint property of both neighbours. Ordinarily, it cannot be killed unless both neighbours have agreed to it.

This tree happened to be in Toronto’s leafy and upscale Moore Park neighborhood. One of the neighbours has a growing family. They wanted to build an addition to the back of the house to expand it — a not uncommon move in Toronto’s hot property market. The plans that their architect drew up would have required cutting down this big old maple tree.

Trees are protected by a Toronto by-law. However, if you make a strong enough case for it, the city will sometimes give its permission to chop down a tree. The city gave its assent, but the neighbours who were the joint owners of the tree did not.

Therefore, the builders went to court. They applied for the court’s permission to have the tree cut down. They said it was a nuisance because it substantially interferes with the use of their land.

The judge weighed the matter in the balance. One neighbour had a need for more rooms, while the other neighbour loved the tree and wanted to maintain the beauty of its shade. He looked at the plans for construction. In this case, it might have been possible to build the addition elsewhere on the lot.

The neighbours applying to cut down the tree had not provided any evidence that they had considered alternative construction plans that might have saved the tree. Based on that factor alone, the judge denied their application. He awarded legal costs to the neighbours who wanted to preserve the tree.

For the time being, the old maple tree is saved. Time will tell whether the builders will alter their design plans, or merely return to court with stronger arguments for cutting down the tree.

As this case shows, it’s vital to consider all the alternatives before making such an application. It’s important to keep in mind the high value of mature trees for the urban environment. They provide cooling shade and help clean the air of pollutants. Quite properly, the law gives them a significant amount of protection.

This is provided as general information, and should not be considered legal advice for your particular case. Peter Spiro is a Toronto lawyer who provides unbundled legal advisory services for self-represented litigants, www.peterspiro.com

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source https://www.huffingtonpost.ca/peter-spiro/suing-a-neighbour-over-a-tree_a_23705115/

By The Wall of Law April 6, 2019 Off

Toronto mother charged with attempted murder after baby found with stab wounds

A Toronto mother has been charged with attempted murder after her baby boy was allegedly found with stab wounds on Wednesday afternoon.

Police first attended a building on Canyon Avenue, near Bathurst Street and Sheppard Avenue, at around 4 p.m. after receiving a “medical complaint.”

When officers arrived, they found a woman and baby suffering from injuries.

Initially, police only described the child’s as “puncture wounds.”

On Friday, investigators elaborated on the case, claiming both the child and woman were located with stab wounds.

The boy, who is less than one month old, remains at Sick Kids Hospital in critical but stable condition. Sources tell CTV News Toronto that the baby boy has suffered multiple seizures since arriving there on Wednesday.

“The baby has suffered multiple stab wounds,” Const. David Hopkinson said. “The injuries are quite serious.”

The 36-year-old suspect appeared in court on Thursday and remains in police custody.

Anyone with information about the incident is being asked to contact Toronto police or Crime Stoppers anonymously.

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source https://toronto.ctvnews.ca/toronto-mother-charged-with-attempted-murder-after-baby-found-with-stab-wounds-1.4367589

By The Wall of Law April 6, 2019 Off

Bill C-92’s Indigenous child welfare act risks continuing the status quo

Pamela Palmater
Canadian Parliament. Photo: Sam Szapucki/Flickr

Bill C-92, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, has been heralded as a “historic turning point,” an “important first step,” a “major milestone” along with other similarly over-used and under-impressive political phrases to describe yet another top-down initiative from the federal government. While the Assembly of First Nations National Chief Perry Bellegarde (AFN) claimed that this legislation was “co-drafted” by the AFN and the federal government, that was not the case. In fact, Dr. Cindy Blackstock confirmed that First Nations did not co-draft the legislation and First Nations were not even permitted to see the second draft before it was tabled. This should be no surprise as Justice Canada does not co-draft legislation with anyone other than the French and English legislative drafters at Justice Canada — this is their long-standing practice. Bill C-92 content is glaring evidence that First Nation experts in child welfare did not hold the pen on this bill.

There are many problems with this bill, but the main problem is it does not deliver any of what was promised by the federal government. Prime Minister Trudeau’s Liberal government promised to address the “humanitarian crisis” through federal legislation that fully recognized First Nation jurisdiction in relation to child welfare; that would provide statutory funding; and would eliminate the over-representation of First Nation children in care. If this bill is not substantially amended before it is passed, it will not accomplish any of those important goals. Ultimately, it will be our children and our families on the ground — in our communities — that will pay the biggest price. The fact that the AFN is promoting this bill so strenuously, without regard for the numerous and serious concerns raised by First Nation leaders, lawyers, academics and child welfare experts, shows how disconnected they are to the crisis at hand.

Despite the many issues raised by the Assembly of Manitoba Chiefs, the First Nations Child and Family Caring Society and others, the AFN supports this bill as do the Métis National Council (MNC) and Inuit Tapiriit Kanatami (ITK). While I also have numerous, detailed concerns with the wording, structure and content of this bill, they are too many to include in this blog. What follows is a general overview of my concerns from a First Nation perspective.

Pan-Indigenous Legislation

First of all, pan-Indigenous legislation has always been difficult to work with because of the differences between the 50–60 traditional Indigenous Nations in Canada that are now separated into 634+/- individual First Nations (Indian bands), across various provinces and within different treaty areas (some without treaties). However, pan-First Nation legislation, with opt-in clauses and flexible provisions to deal with legal, political and cultural variances, would be far superior to what is offered in this bill. Bill C-92 purports to cram First Nations, Inuit and Métis into one act that offers the same legislative options to all three groups — despite their vastly different histories, socio-economic conditions and rights.

There are vast differences between the legal rights and specific needs of First Nations, Inuit and the Métis. For example, the Métis have much better socio-economic conditions than First Nations and Inuit. Geographic differences between the Inuit and First Nations and Métis, also require solutions tailored to their unique situation. Failure to do so can create inequalities between the groups.

Substantive Inequality

This bill also misses the mark in its purported goal to support Nation-to-Nation (First Nations), government-to-government (Métis) and Inuit-Crown relations by treating us all the same. Here’s the problem — when Canada treats all three groups formally the same, it prejudices the rights, needs and interests of those with more acute conditions. In other words, by treating all three groups as formally equally, those with the most acute needs will be treated substantively unequal. While disadvantage should never be about a “race to the bottom,” formal equality will embed discrimination into the very structure of this legislation and will operate to disadvantage First Nations in particular. First Nations are larger in population, have higher rates of child apprehensions and higher rates of underlying poverty, caused by the kinds of land dispossession and breach of treaty rights not experienced by Métis (with some exceptions).

That is not to say that the Métis should not have their own framework — that is for them to decide what works best for them with the needs of their own constituency. First Nation, Métis and Inuit options should not be limited to the same generic legislative framework, from the same budget line, which assumes the same socio-economic needs, legal rights and interests. This pan-Indigenous template is not in line with the federal government’s promised “distinctions-based” approach and serves to embed substantive inequality into the act.

First Nation Jurisdiction

First Nation jurisdiction should be the heart of this bill. At best, what is offered is a delegated authority under federal jurisdiction, which is conditional on agreement with the provinces. At worst, this bill increases federal ministerial control, while leaving provincial laws, policies and practices virtually in tact. Bill C-92 creates new powers for an unnamed federal minister to carry out the provisions of the legislation, make regulations, possibly collect data and provide a report to Parliament after five years. What is missing is the original purpose of the bill: to recognize First Nation jurisdiction. While it purports to recognize First Nation jurisdiction, it does so with several substantive conditions. First Nation jurisdiction and laws in relation to child welfare appear to be directly or indirectly subject to the following limits:

  • Canadian Charter of Rights and Freedoms;
  • Canadian Human Rights Act;
  • Section 35 Constitution Act, 1982 jurisprudence and limits in relation to constitutionally protected rights;
  • “Inherent right to self-government” which indirectly incorporates the impoverished definition of self-determination outlined in the Inherent Right Policy;
  • Constitution Act, 1867, section 92 provincial jurisdiction, i.e. provincial laws are the minimum standard;
  • Successful negotiation of a tri-lateral coordination agreement between the First Nation, province and federal government (or proof they made good faith effort to negotiate);
  • Pre-existing definitions of “best interests of the child” from legal precedents;
  • Sections 10-15 of Bill C-92, which outlines specific limitations in relation to the best interests of the child, parental representation, notice of apprehensions, preventative care as the priority, and no apprehensions due to poverty.

If a First Nation manages to ensure their laws meet all of these conditions, then they could be recognized as a “federal law,” but not a law in their own right — based on First Nation jurisdiction. It seems very clear that what is being offered is a delegated authority under federal jurisdiction, which is also limited by the constitutional division of powers. Nothing in this bill binds a provincial government or requires them to even come to the table — let alone contribute any funding. Some First Nations may be okay with exercising their powers this way in order to address the urgent crisis, but the federal government should just be honest about it and stop trying to package it as First Nation jurisdiction.

There is also no specific recognition for pre-existing First Nation laws — oral or written — except in the case of self-government agreements, and these laws would only be paramount to the extent of any conflict with Bill C-92. What of First Nations that choose not to make agreements with the province? What if a First Nation chooses to negotiate only with the federal government? There are far more questions than answers in this bill — all of which need to be addressed in order to avoid legal chaos and uncertainty around jurisdiction.

Funding and Socio-Economic Conditions

My last major concern about this bill is the failure to include clear, directive language that would provide a statutory guarantee for annual funding, that is based on equal access to holistic, wrap- around social programs and services, that take into account specific needs, population increases, inflation, geographic location and actual costs. Without this statutory guarantee, any recognition or First Nation jurisdiction is entirely hollow. Substantial funds are required for the development and enforcement of First Nation laws: policies and regulations in relation to child and family services; staffing and training; infrastructure; legal and technical research and advisory services; data collection and analysis; and monitoring, compliance, reporting and enforcement. The core issue has always been the long-standing chronic and discriminatory under-funding of social services for First Nations, like food, water, housing, health and education. This racist under-funding is what created the crisis and serves to maintain. Legislation is not needed to end discriminatory funding, but if legislation is to be enacted, a firm commitment for funding needs to be included.

It is noteworthy that there is no mention of First Nation Aboriginal rights or treaty rights in relation to the funding that attaches to child welfare. While it may be politically expedient to create an act that is neutral on “rights” for all parties, this must be in exchange for a substantive, enforceable legal funding commitment. Long gone are the days where First Nations can reasonably or responsibly rely on the word of ministers to hope that they fulfill their political promises. Ministers change, governments change and the law changes — which is why, if there is to be legislation, that it include a statutory guarantee of funding.  Without it, this legislation is empty of any real intention or ability to end the status quo — a price that will continue to be paid by our children and their children. First Nation cannot afford to lose any more children to a racist and sexually violent system that decreases their life chances and limits their ability to enjoy life with their families, communities, and Nations. The increasing foster care rates, incarceration rates and murdered and missing rates compel us to act urgently and with purpose.

All that is required is for Parliament to sit down with First Nation child welfare experts and make the required amendments. Without substantive amendments, this bill may end up causing more harm than good and inject legal chaos into an already broken system and risk the lives of more of our children. Canada has apologized for the trauma caused by residential schools, while at the same time admitting that child welfare has continued the trauma. Canada has stated that this is a humanitarian crisis and as such is legally and morally bound to do better.

It’s time to sit at the table and urgently work this out for the sake of the children.

Dr. Pamela D. Palmater is a Mi’kmaw lawyer and member of the Eel River Bar First Nation in New Brunswick. She teaches Indigenous law, politics and governance at Ryerson University and heads Ryerson’s Centre for Indigenous Governance.

Photo: Sam Szapucki/Flickr

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source http://rabble.ca/blogs/bloggers/indigenous-nationhood/2019/04/bill-c-92s-indigenous-child-welfare-act-risks

By The Wall of Law April 6, 2019 Off

Ex-spy Valerie Plame eyes run for Congress

ALBUQUERQUE, N.M. — Former CIA operative, author and activist Valerie Plame said Friday she is considering a 2020 run for an open U.S. congressional seat in New Mexico.

Plame told The Associated Press she is spending time with residents and will make a decision soon. The seat is currently held by Democratic U.S. Rep. Ben Rey Lujan, who is stepping down to run for U.S. Senate.

“Right now, I am going around and meeting with people,” said Plame, a Democrat. “I have a lot to learn and I would like another opportunity to serve my country.”

Plame became a national figure after her identity as a CIA operative was leaked by an official in President George W. Bush’s administration in 2003 in an effort to discredit her then-husband Joe Wilson.

Wilson is a former diplomat who criticized Bush’s decision to invade Iraq. Plame left the agency in 2005.

Plame says she’d be honoured to represent the sprawling district, which covers all of northern New Mexico, parts of the Navajo Nation and a large portion of state’s east side.

She would face several Democratic contenders if she decides to run. State Rep. Joseph Sanchez and businessman Mark McDonald have already announced they are candidates and Santa Fe District Attorney Marco Serna is considering a bid.

I. Lewis “Scooter” Libby, a former top aide to Vice-President Dick Cheney, however, was convicted of lying to investigators and obstruction of justice following the 2003 leak. President Donald Trump issued a full pardon to Libby last year.

In 2017, the Wilsons launched an unsuccessful crowdfunding effort to buy Twitter so Trump couldn’t use it. At the time, Plame said if she didn’t get enough to purchase a majority of shares, she would explore options to buy “a significant stake” and champion the proposal at Twitter’s annual shareholder meeting. Plame and Wilson divorced later that year.

Plame is the author of the memoir “Fair Game: My Life as a Spy, My Betrayal by the White House.”

The book was made into a 2010 movie starring Sean Penn and Naomi Watts.

___

Follow Russell Contreras on Twitter at http://twitter.com/russcontreras

Russell Contreras, The Associated Press

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source https://toronto.citynews.ca/2019/04/05/ex-spy-valerie-plame-eyes-run-for-congress/

By The Wall of Law April 5, 2019 Off