Volume 89, Issue 12 (2016)

Osgoode Hall Law School of York University Osgoode Digital Commons Obiter Dicta Alumni & Law School Publications 3-8-2016 Volume 89, Issue 12 (2016) Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/obiter_dicta Part of the Law Commons Recommended Citation "Volume 89, Issue 12 (2016)" (2016). Obiter Dicta. 55. http://digitalcommons.osgoode.yorku.ca/obiter_dicta/55 This Book is brought to you for free and open access by the Alumni & Law School Publications at Osgoode Digital Commons. It has been accepted for inclusion in Obiter Dicta by an authorized administrator of Osgoode Digital Commons. Volume 89 | Issue 12 | obiter-dicta.ca The Definitive Source for Osgoode News since 1928 Tuesday, March 8, 2016 ADDING INJURY TO INJURY The Case for PierCing TChC’s CorPoraTe Veil ê Lucas Oleniuk of the Toronto Star - ESTHER MENDELSOHN On 5 February 2016, a fire in a Scarborough corporate veil.” It refers to what happens when residence run by Toronto Community Housing a court looks behind a corporation’s “veil”—the Corporation (TCHC) claimed the lives of three notion that the corporation is a separate entity seniors and injured several others, includ- and independent of the people who run it—and In this Issue... ing twelve people who had to be hospitalized. finds that the officers of otherwise faceless editorial The Toronto Fire Marshal announced that it businesses can be held personally liable for the Misogyny, Music, Malaise: Free Kesha . 2 would be filing non-criminal charges under actions they take in the name of those corpora- news section 2.4(2) of the Ontario Fire Code against tions. It flies in the face of the most fundamental OWNing Our Careers: . 3 the TCHC for placing combustible materi- tenets of corporate law, but increasingly citi- als near a fire exit. The following is an artic- zens are demanding more direct accountability opinion ulation of why those charges should be left when the corporations in their midst engage in Grim Lessons from the Trial of Jian Ghomeshi . 7 at the doorstep of the individual officers of ethically problematic and harmful behaviour, arts & culture the TCHC, and not the corporation itself. and “piercing” is the judicial system’s answer to A Concert Review: Yukon Blonde . 11 Those who have had the distinct pleasure those demands. of taking “Biz Ass” (Osgoode students’ diminu- sports tive nickname for Business Associations, oth- All Star Game in the North . 13 erwise known as “Business Law”) will no doubt recall, at least vaguely, discussing “piercing the » continued on page 8 2 Obiter Dicta EDITORIAL Misogyny, Music, Malaise: Free Kesha - ERIN GARBETT To be honest, this isn’t the editorial I planned to write this issue. Rather than a riveting ride through the necessity defence and illegal environmental activism (stay tuned!), I felt compelled to write about Kesha and what’s happening to her. In case you’re unaware--after being under contract with Dr. Luke since 2005, Kesha filed a suit against him in 2014, alleging he drugged and raped her around the time she signed with him. She has also alleged gender violence, sexual harassment, inten- tional and negligent infliction of emotional distress and unfair business. The trial will not begin until late next year. In the meantime Kesha filed a motion of injunction to allow her to record outside her cur- rent contract with Dr. Luke’s label, which is under Sony. On September 19th, the injunction was denied. Admitting she didn’t totally fully believe Kesha, Kesha leaving the New York Supreme Court on Febru- presumed to be lying. We don’t ask why Dr. Luke is Judge Shirley Kornreich denied the motion in part ê ary 19th. Source: James Devaney/GC Images still working after being accused of such deplorable because her “instinct [was] to do the commercially acts and Kesha isn’t. reasonable thing.” does it? Maybe Kesha’s testimony won’t be enough Some wonder if Kesha is lying to get a “better When I saw pictures of Kesha crying in the court- to convince a judge on a balance of probabilities that deal,” because we’re supposed to wonder what the room a couple weeks ago, I was at first disgusted that Dr. Luke committed the acts she is accusing him of, victim is really trying to get. We don’t wonder why such an emotional moment was so publically acces- but we shouldn’t devalue her words to the extent that producers like Dr. Luke refer to their business as sible. Swiftly however, that disgust was displaced by they offer nothing in the way of evidence. “manufacturing” stars, or why a story about Dr. Luke a deep and visceral dread. This statement also showed a lack of understand- referred to Kesha as “proving hard to control.” We I remembered walking into a coffee shop to meet ing of the reality of accusing someone of sexual don’t wonder why we focus on Dr. Luke investing a friend and seeing my abusive ex-partner. I remem- assault that saddened me to the extent that it physi- in Kesha when she was the first signing name to his bered calmly getting a coffee, leaving, then throwing cally hurt. How can we on one hand know that public label Kemosabe Records, and is one of the reasons the it into the garbage and running away as fast as I could backlash, stress, and professional setbacks are likely label received financing from Sony. We don’t wonder as soon as I couldn’t be seen from inside. I remem- when accusing wealthy and/or powerful individuals why the judge unhesitatingly compared commercial bered my lungs burning and my heart pounding as I of sexual assault, and on the other still believe that interests to the wellbeing of a human being, why “I cried. I remembered worrying for the next few weeks musicians would come out of the woodwork to accuse cannot work with Dr. Luke. I physically cannot. I that he may try to contact me. I remembered how the powerful, wealthy producers if the judge allowed don’t feel safe in anyway” translates to “decimat[ing] possibility of interacting with this person was enough Kesha to record outside her contract? Obviously Judge a contract.” We don’t wonder how the accuser’s inter- to trigger a fight or flight response. I considered being Kornreich also held this belief, stating that ruling in ests and the accused’s interests are “not in the least in Kesha’s shoes and was filled with the profoundest Kesha’s favour could set a “troubling precedent” for bit mutually exclusive,” as a Sony lawyer stated. We dread. the recording industry. Why forcing a musician to don’t wonder why Sony’s assertions that they will A few days after the ruling came out, I overheard choose between working with the same company as promote Kesha’s best interests are taken at face value, someone agreeing with Judge Kornreich because her alleged abuser and not working at all isn’t at the while Kesha’s lawyers statements that they would not “there isn’t any proof,” and because if musicians very least an equally troubling precedent—if not more are mere “speculations.” could get out of their contract by alleging sexual troubling —is beyond me. As a quick side note, my Kesha’s predicament is a terrible one that I cannot assault without proof, everyone would do it. I haven’t colleague Ian Mason wrote an article in this issue that truly empathize with, as I have never been forced to taken evidence, but I find it disconcerting that an discusses the cross-examinations Jian Ghomeshi’s work at the same company with my abuser, let alone accuser’s words mean so little that in “he-said- accusers have experienced; I encourage you to read it. at the same company where my abuser holds a dis- she-said” cases, we say there’s no proof against the Some ask why Kesha didn’t come forward close to proportionate level of power and influence. I can say accused. If that’s the case, why don’t we also say there 10 years ago when it first occurred; some ask why this however that I cannot fathom being in the same situ- isn’t proof the accused didn’t do it? Why are only is a civil case and not criminal, because that’s what ation. Working for the same company as my abuser the words of accuser invalid? I understand to some we’ve been taught to do. We don’t ask why 68% of would quite literally be a nightmare I have in the past, extent—criminal law is not my jam—the presump- sexual assault victims don’t come forward. We don’t and Kesha—assuming she’s telling the truth, which I tion of innocence in criminal cases. But even if this ask why only 3 out of every 100 rapists will spend do—is living that nightmare. That the justice system was a criminal case and not a civil one, the presump- even 1 day in jail. We don’t ask why anyone would has forced her into that nightmare is appalling. tion of innocence doesn’t make words meaningless, come forward when they will almost certainly be editorial board staff writers TheObiter Dicta is published biweekly ediTor-in-Chief | Sam Michaels Anthony Choi, Michael Motala, Kareem during the school year, and is printed by managing ediTor | Erin Garbett Webster, Esther Mendelsohn, Jerico Espinas, Weller Publishing Co. Ltd. CreaTiVe director | Heather Pringle Henry Limheng, Michael Silver, Justin a.

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