Justice Delayed Is Justice Denied

When the event and the court resolution of the event are not closely connected in time, people are less affected by the decision. In civil cases, the uncertainty of outcome means decisions are made in an information vacuum. The result is friction in decision-making. Friction raises the price and reduces the value of such decisions.

Commercial Law

Suppose, there is a tax case involving a common structure or transaction. Suppose the taxpayer loses in the lower court and appeals. The appeal could go either way so practitioners and their clients are in an untenable place. How long would be the longest they should wait for a resolution. Suppose you wanted to know where a trust was resident. Not so hard, right. Well, maybe not so easy after all. The Garron Family Trust et al case was settled by the supreme court in 2012 after receiving the case from the court of appeal in 2009. That is fourteen years after the transaction that created two trusts was created.

Suppose you were planning the same sort of transaction in 2009. What would you do? Wait? Proceed on the balance of probability? Avoid entirely and do something else?

It is a blemish on planning. On the other hand, it is a very complex case and involves several hundred million of potential tax. Not something you ant decided without reasons or thought.

I think there is no easy way to protect people who entered into similar transactions expecting one result that subsequently became the wrong course.

There are other cases that take a long time to settle involving other aspects of commercial law. Environmental liability, landlord/tenant, product negligence, advertising errors and others.

It is hard to manage some parts of your life when you don’t know the rules and the nature of the playing field.

We should ask for the court processes to be speeded up so the friction is less

The problem applies to criminal proceedings too.

The Tree of Life Synagogue massacre in Pittsburgh happened 27 October 2018. Robert Bowers gunned down eleven members of the congregation and was captured at the scene. From the evidence we know about, admittedly not court-sanctioned evidence, there is a near-complete case and no apparent reason he could be acquitted. Nonetheless, the trial “May be ready to proceed” by July 2022.

In that hate crimes are a topic of some discussion, it seems to me that a clear red line result would be a good value for society. So what’s the problem? Is it possible some people don’t want red lines? Would anti-semitic shootings be a little permitted? Other than making the crime forgettable and the court sanction less compelling what other reason is there for a 4-year delay?

Laws are for a purpose. They are to clarify what behaviours society will accept. If they have fuzzy edges, they are of little value.

The bits to take away.

Life is easier if the rules of the game and the playing field are well-defined.

Challenge politicians for the reasons it doesn’t happen and what they will do to remedy the situation.

There is a risk in not knowing how to make important decisions.

People are never satisfied with uncertainty. It hurts their planning


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I build strategic, fact-based estate and income plans. The plans identify alternate ways to achieve spending and estate distribution goals. In the past, I have been a planner with a large insurance, employee benefits, and investment agency, a partner in a large international public accounting firm, CEO of a software start-up, a partner in an energy management system importer, and briefly in the restaurant business. I have appeared on more than 100 television shows on financial planning have presented to organizations as varied as the Canadian Bar Association, The Ontario Institute of Chartered Accountants, The Ontario Ministry of Agriculture and Food, and Banks – from CIBC to the Business Development Bank.

Be in touch at 705-927-4770 or by email at don@moneyfyi.com.

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