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Update of Nov 16 & 17 Court Case

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Just my personal take on the 2 days in court

Post by Matrixx on Thu 01 Dec 2011, 09:10

I will just start off by commenting on David’s 4 points as well as his take on it and no offence to him if my opinion differs as I'm pretty sure all who were there came away with their own thoughts on how it went.

Point #1 this can be combined with point #4.

I will add the full definition of the following term at the bottom of my comments.

The term is “Contra proferentem” which in plain language pretty much means the court will and usually rules in favour of the plaintiff when the wording of the contract, in this case the SISIP policy is such that it leaves certain words or definitions open to debate or not being specific enough.

In our case the policy writer has the full weight or responsibility to spell out as clearly as possible the meaning of any and all statements. In our case the issue is a simple one, the wording of “other” or “other income”. To me this is so open to interpretation that the court really has no choice but to disqualify the “pain and suffering benefits” from VAC as “income”. It is not stated anywhere in the policy other than what was mentioned above.

So if you combine that with the Law firms examples of income from many government sources, it leaves little room for the crown to prove their case stating that it is income.

#2 Historic purpose, this is pretty self explanatory so not really much to add.

#3 Case Law, again pretty self explanatory.

So to finish this, I came out of the 2 days feeling great about the way the law firm handled the case and as for the crown, they got an F- as in I'm not sure why they even showed up.
We blew them out of the water…

Contra proferentem is a doctrine of contractual interpretation which provides that an ambiguous term will be construed against the party that imposed its inclusion in the contract – or, more accurately, against (the interests of) the party who imposed it.[1] The interpretation will therefore favor the party that did not insist on its inclusion. The rule applies only if, and to the extent that, the clause was included at the unilateral insistence of one party without having been subject to negotiation by the counter-party. Additionally, the rule applies only if a court determines the term to be ambiguous, which often forms the substance of a contractual dispute.

It translates from the Latin literally to mean "against (contra) the one bringing forth (the proferens)."

The reasoning behind this rule is to encourage the drafter of a contract to be as clear and explicit as possible and to take into account as many foreseeable situations as it can.

Additionally, the rule reflects the court's inherent dislike of standard-form take-it-or-leave-it contracts also known as contracts of adhesion (e.g., standard form insurance contracts for individual consumers, residential leases, etc.). The court perceives such contracts to be the product of bargaining between parties in unfair or uneven positions. To mitigate this perceived unfairness, legal systems apply the doctrine of contra proferentem; giving the benefit of any doubt in favour of the party upon whom the contract was foisted. Some courts when seeking a particular result will use contra proferentem to take a strict approach against insurers and other powerful contracting parties and go so far as to interpret terms of the contract in favor of the other party, even where the meaning of a term would appear clear and unambiguous on its face, although this application is disfavored.

Contra proferentem also places the cost of losses on the party who was in the best position to avoid the harm. This is generally the person who drafted the contract. An example of this is the insurance contract mentioned above, which is a good example of an adhesion contract. There, the insurance company is the party completely in control of the terms of the contract and is generally in a better position to, for example, avoid contractual forfeiture. This is a longstanding principle: see, for example, California Civil Code §1654 (“In cases of uncertainty ... the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist"), which was enacted in 1872. Numerous other states have codified the rule as well.

The principle has also been codified in international instruments such as the UNIDROIT Principles and the Principles

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Update of Nov 16 & 17 Court Case

Post by Teentitan on Wed 23 Nov 2011, 11:32

Compliments of David! Alternative Media here is a synopsis of what happened in the Halifax courtroom for the SISIP Class Action...

The SISIP LTD Class Action was first mentioned in “A Dirty Little Skirmish“.

Fractured and disjointed accurately describes Canadian veterans advocacy efforts. The failure of the Royal Canadian Legion’s (RCL) collegial approach, combined with the limited successes of the various advocacy groups, has created frustration among veterans. The only way forward may be through the courts.

Currently, the Canadian government faces three Class Action Lawsuits associated with Military and RCMP veterans:

  • SISIP LTD Class Action

  • RCMP LTD Class Action

  • Lump Sum Class Action

The SISIP Class Action is the most advanced of the three cases. The law firm McInnis Cooper (Peter Driscoll) is working the SISIP LTD Class Action at no cost. McInnis Cooper has also begun the RCMP LTD Class Action.

The 16 and 17 Nov hearings are the beginning of a very long process. At the hearing, the judge commented on the research and the volume of documents issued by both party’s. The legal arguments in the courtroom swirled around definitions of “income” and “pay”. Peter Driscoll’s team focused on 4 main points:

1.Plain reading of the policy. Plain reading is important as military members have little legal training and no access to legal advice when the policy is placed in front of them. Members must join the policy and must pay premiums. Essentially, military members are coerced into joining the plan.
2.Historic purpose. The purpose of the policy was to provide income replacement and not to limit the income of individuals.
3.Case Law. The case law cited indicated monies couldn’t be given and then taken away within the same policy.
4.Reasonable expectation. It is reasonable that members pay into an insurance policy and get the full benefit of that policy.
In an effort to derail the class action, the government defended their position by focusing on technicalities.

Government lawyers also demanded access to Dennis Manuge’s personal correspondence. In an age of social media, it has become common practice to search social media for patterns of activity or illegal activity that may undermine a case. No one is immune. Kurrently, Who’s Talkin, social mention, and basic search tools allow you to legally search social media conversations free of charge.

The judge was non-committal on the timeframe for a decision. Given the delay in the courts, the case load mentioned by the judge, and the time of year it would not be unreasonable to see a decision in March 2011.

To inform the public of the issues at hand, McInnis Cooper created a dedicated website called: Leave No Vet Behind . Videos have been created to up the social media pressure McInnis Cooper has also begun the RCMP LTD Class Action. More information, publications, and media on both is available at the McInnes Cooper Website.
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