Law Times

June 21, 2010

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Law Times • June 21, 2010 Ontario dodges bullet on HST C all it the calm before the storm. With the legisla- ture adjourned until Sept. 13, things will be quiet around Queen's Park for the next few weeks. But that doesn't mean politicians will be spending their time lolling around the cottage dock. Considering that the har- monized sales tax will officially kick in July 1, many of those MPPs on the government side might wish they were back at Queen's Park, where things might be a little safer from the wrath of the electorate as the full impact of the levy kicks in. While the Liberals earned a few points for standing up to the drugstores over the $700 million in kickbacks for generic drugs, that probably won't insu- late them from the anger result- ing from the HST. Those MPPs, of course are fully briefed with a series of sug- gested responses on the issue. The spin doctors have been parroting them for weeks, in particular by pointing out that in the long run the HST will create 500,000 jobs and is popular with much of the business community. There will almost certainly be some horror stories on July 1 as the cost of funerals rises and some poor family finds out that, because a loved one died just after midnight, the new tax applies. Buying a home will also get more expensive, mak- ing ownership even less afford- able for young families to live in Toronto unless they want to settle for a glass box in the sky and sell their car. Meanwhile, the government is also betting that the $1.3 bil- lion in rebate cheques mailed out to 6.6 million households to offset the HST's impact will buy some time or at least lessen the sting. That's a bit of a gamble because it's the federal government that's issuing them, albeit with a message from Pre- mier Dalton McGuinty that may leave the electorate a bit confused as to who the benefac- tor really is. Nevertheless, there's another last-minute assist from Ottawa that will go a long way to calm- ing the turbulent waters this summer for MPPs. The federal government has backed off on how to apply the HST to First Nations people, who had promised civil insur- rection in the form of toll roads, blockades, and mass demon- strations starting as early as this coming weekend with the $1-billion Stephen Harper pho- to-ops taking place in Hunts- ville, Ont., and Toronto. In this case, natives have shown themselves to be special. The federal government buck- led after delegates at the annual general assembly of the Anishin- abek Nation unanimously voted to set up toll booths and "esca- late a direct-action campaign against the illegal imposition Inside Queen's Park By Ian Harvey of the 13-per-cent Canada-On- tario harmonized sales tax." "We have told other govern- ments that they cannot treat First Nations like subjects or slaves to their will," said Grand Council Chief Patrick Madah- bee. "We have told them they cannot ignore our treaty and inherent rights and the deci- sions of their own courts. We have told them they cannot im- pose their taxes on our nation. We have drawn our line in the sand." Those are fighting words and, in the interests of keeping G8 and G20 dignitaries this weekend from having their mo- torcades surrounded by hordes of screaming protesters, Ottawa has agreed to change the way natives pay the HST. What aboriginals got is a con- tinuation of a standing practice that exempts them from paying sales tax upon presentation of their status card. While this has been the norm for the provin- cial sale tax, the GST requires filling out a form afterwards to trigger a rebate from the fed- eral government. The item pur- chased also has to be going to an address on a reserve. Aboriginals say having to file paperwork for the HST at 13 per cent represents a hard- ship for people living in poverty and who can't afford to wait for a rebate. In British Columbia, the parallel First Nations group there had joined former pre- mier Bill Vander Zalm in a legal challenge against the HST, but the recent capitulation makes its support moot. In Ontario, native groups were also threatening to set up massive tax-free retail outlets on reserves in which they would have offered big-ticket items, such as appliances, electronics, and maybe even cars, all free of the 13-per-cent tax. When you're talking about $1,000 flat-screen TVs and $30,000 used vehicles, that's a nice chunk of change li- able to draw a lot of consumers looking to dodge the tax. The Anishinabek Nation repre- sents some 55,000 people, so this was no idle threat. When push came to shove, Ottawa blinked, but it will be the McGuinty gov- ernment that may be the biggest beneficiary since it's already fac- ing a perception as being soft on First Nations issues over its stand at Caledonia. LT Ian Harvey has been a journalist for 32 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ianharvey@|rogers. com. THE VEIL DEBATE I don't see a problem in unveiling when it is needed. My problem is people telling me how to practise my religion or what constitutes my reli- gion as well as trying to force on me other coun- tries' perception and laws about said religion. As a person born and raised in North America, I www.lawtimesnews.com COMMENT The sad case of pastor Erica Davis and her church BY DAVID VAN DER WOERD For Law Times R eligious wars are the worst. Despite historical precedent to the contrary, we are always amazed when religious folk act in the opposite way we expect and become so entrenched in their positions that rational thought seems to completely escape them. Like it or not, we hold the religious to a higher standard. That may not be fair, but it's the way it is. Erica Davis was the pastor at the Brit- ish Methodist Episco- pal Church in Guelph, Ont., for 13 years until she was replaced on July 13, 2008. Unfortunately, her departure was less than graceful. One collateral effect of her dis- missal was the requirement that she surrender the church property and vacate its premises, something she had little inclination to do. Those events crystallized a vision in the pas- tor's mind that the church owed her money for her many years of service, about a quarter of a million dollars, in fact. According to the court reports, the congregants, acting more or less as spectators at a tennis match watch- ing the volleys go back and forth between the church authorities and the pastor, entered the fray at this point. They tried to resolve the dilemma by offering an unexpected solu- tion. Instead of paying this alleged debt in the cold hard cash that was being demanded, they generously offered up their real estate to pacify the embittered cleric. Davis, likely as- tonished, gladly obliged. So a tidy resolution was achieved and averted. Not so fast. Lo and behold, the church au- thorities revealed an explanation for the con- gregants' remarkable willingness to offer up their cherished house of worship as a way to rid themselves of this headache. They didn't own it; the church did. Well, offering Davis the kitchen sink, so to speak, and then immediately snatching it away appears to have had the same effect as waving a red blanket in front of a bull. The dispute went from bad to worse. Davis dug in her heels. She wasn't going anywhere. So the church went to court to get her out. At the hearing, the pastor obstinately and unwisely absented herself, thereby depriv- ing herself of the benefit of a fair hearing. The result was disastrous. The court, absorbing a one-sided version of events in British Meth- odist Episcopal Church v. Davis, promptly or- dered her to give up interim possession of the property, hand over her keys, stop interfer- ing at worship services, and not return there without the church's consent. With her back against the wall, Davis grasped at straws. She appealed the order. Still unrepresented and clearly over her head, her appeal was quickly dispensed with. In fact, the court reaffirmed the previous orders and warned her of contempt proceedings if she remained obstinate. This had no effect upon Davis. Seemingly intent on digging herself as Web Correspondence deep a hole as possible, she defiantly scripted a letter to the church's lawyers confirming she had no intention to vacate and adding, in language atypical for a pastor, that they were "looking for trouble, and someone could get hurt." With more ammunition in hand, the Speaker's Corner church went back to court. Her letter poured gasoline on the fire. The court held her in contempt of the court, as it had previously warned it would do, and reaffirmed the church's ownership of the property. Show- ing remarkable patience, however, the court gave her 10 more days to come to her senses. It may as well have been 10 years. Two months later, back in court for the fourth time, the church reported that still nothing had changed. An order for her incarceration resulted. It's not every day that a court makes an order to arrest a defiant cleric. Davis' options were quickly running out. She played the appeal card again, this time to the Ontario Court of Appeal. The nice thing about going to this court is the amount of time it takes to get a hearing. This tactic bought her a year. One year later, before a panel of three judges, Davis appeared to have relented a bit. She said she had abandoned any claim over the ownership of the property; had stopped attending the church premises; was no longer going to the services; had handed in her keys; and had given up all of the church property in her possession. The court declared she had purged her contempt and that therefore there was no longer a need for an arrest warrant. As a result, the proceedings were dismissed. So the battle was finally over, or maybe not. What would motivate Davis to prolong the battle at this point is anyone's guess. One can only speculate that the last administra- tive point made by the Court of Appeal in dismissing her case had reopened the wound. Unbelievably, she made another appeal to the Supreme Court of Canada. On June 3, the top court made short work of that appeal, too. Thank goodness there's no higher court in this country. That should be the end of it. By my count, there were six sub- stantive court rulings made in this case. That likely means dozens of court appearances. The vast majority of cases in the judicial system settle before a hearing. For all of the public's criticism about the efficiency of the courts, that must mean something. Of the small fraction of cases that do go to a hearing, another small percentage continues on to an appeal. Hardly any make it to the top court. With those that do, when all is said and done and contrary to the impassioned views of the combatants, it's often difficult to identify who wears the white hat. Much blood was shed in this battle. We all should cringe when we read about it. LT David van der Woerd practises at Ross & McBride LLP in Hamilton, Ont. He can be reached at 905-572-5803 or dvanderwoerd@ rossmcbride.com. resent that I might be subjected to foreign laws. Religion varies from place to place, and it is unfair to apply a ruling that the people of Egypt have accepted on members of the same religion in other coun- tries. It's not a one-size-fits-all issue. There are many denominations, and within those denom- inations there are subcategories. Comment on lawtimesnews.com by Gloria about "Let's avoid polarization on veils." PAGE 7

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