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Public Opinion Pollster Glen P. Robbins Reasons in Google v Equustek Vol III (for S.C.C.)
  Sep 11, 2016

Commentary
The court has an obligation to act in good faith. By ignoring Google proper- opportunity to defense in lawsuit particularly where the defendants response to civil claim was struck, and presumably default judgment is available, Google was not permitted opportunity to fairly and properly determine what the to what extent the plaintiff was responsible in part for any losses it claims, and for any opportunity missed to mitigate damage.
It appears as if Justice Fenlon was acting more like a lawyer for Equustek than an independent justice. This is the same type of conduct my wife and I experienced in Robbins v Cambridge Mortgage. Simple arguments made unnecessarily confusing.
In my opinion both courts abused its powers and authority a similar assessment which we would apply to the decision makers involved.
Business loss to Equustek:
Was there no estimate of business loss to Equustek by the defendant's actions? If Equustek was not satisfied with the volunteer actions taken by Google to assist it in mitigation of its damages.
The position of Schulman J. of Manitoba Court of Appeal in Dakota v Woods supports the contention that a declaration of ex parte hearing can be made in instances where a claim is undefended.
We believe this case is precisely the type where this principle ought to be applied for default judgment. Google responded to the injunction application of the plaintiff, out of an extreme abundance of caution, likely fearing that if it did not, the lower court justice might have made an order against it if it did not.
Given that Google is not a defendant, and the fact that the court struck the response to civil claim, is it fair to conclude that the application for injunction against Google involves essentially an undefended case.
The rules pertaining to applications do not implore the respondent by using the word “must”, it says it “may” respond. The plaintiff and the court both knew a company with as much as Google has could not resist 'the bait'. What choice did it actually have?
B.C. Directors (Equustek) Directors:
The Business Corporation Act (SBC 2002) Chapter 57 under Definitions @ section (1) “In this Act”: “affidavit”, when used in relation to a person, means; “(b) .. “the person is a corporation, or officer of the corporation (or legal department). “Foreign corporation” means a corporation that (b) has issued shares”. “Foreign corporation's jurisdiction” means, in respect of the a foreign corporation (a) the jurisdiction in which the corporation was incorporated.” Corporate Relationships: 2.1) “For the purposes of this Act, one corporation is affiliated with another corporation if (a) one of them is a subsidiary of the other; (b) both of them are subsidiaries of the same corporation; (c) each of them is controlled by the same person(s)” (see Robbins et al v Cambridge Mortgage Investment Corporation-Peet and Cowan Financial Corporation- BCSC H130330 and BCSC 149328).
Section 32 stipulates: “Extraterritorial capacity” - “Unless restricted by its charter or by the Act, each British Columbia corporation has the capacity (a) to carry on its business....and exercise its powers in any jurisdiction outside British Columbia, and (b) to accept any lawful authority outside British Columbia powers and rights concerning the corporations business...”
Under “Division 4- Company Offices” and section 34 (1) “Subject to section 40, a company must maintain a registered office and a records office in British Columbia.”
Under Part 5 “Management” “Division 2” “Powers and Duties of Director, Offices, Attorney, Representation and Agents”; “Powers and function of directors”: Section 136 (1) stipulates: “The directors of a company must, subject to this Act, the regulations and the memorandum and articles of the company, manage or supervise the management of the business and affairs of the company.”
“Duties of directors and officers”: Section 142 (1) “A director or officer of a company, when exercising the powers and performing the functions of a director or officer of the company, as the case may be, must (a) act honestly and in good faith with a view to be the best interests of the company, (b) exercise the care, diligence and skill that a reasonably prudent individual would exercise in comparable circumstances, (c) act in accordance with this Act and the regulations.....”; (2) “This section is in addition to, and not in derogation of, any enactment or rule of law or equity relating to the duties or liabilities of director and officer of a company.”; “No provision in a contract, the memorandum of articles relieves a director or officer from (a) the duty to act in accordance with this Act and the regulations, or (b) the liability that by virtue of any enactment or rule of law or equity would otherwise attach to that director or officer in respect of any negligence, default, breach of duty or breach of trust of which the director or officer may be guilty in relation to the company.”
In our opinion the lower court justice made the wrong choice under the Court Jurisdiction and Proceedings Transfer Act.
It was not in the public interest to harness the substantial business provisions of the act when more generic provisions were available. By using the substantial business provision the court is in effect treating a non party as if it is party without allowing the party the rules available to a defendant. Google may be a huge company but it is a legal person.
If a massive legal person like Google can be treated this way, the little person stands no chance, and the public interest must be claimed given the numbers of Canadians who operate on the Internet, and the millions who expect access to freedom of speech and expression through it.
The court processes, particularly at appeal levels focus on the public interest.
I provide the following in the public interest:
According to Wikipedia (that's right – Wikipedia) “Economist Lok Sang Ho in his Public Policy and the Public Interest (published 2011) argues that the public interest must be assessed impartially and..defines it (sic) as the “ex ante welfare of the representative individual.” “Under a thought experiment by assuming that there is an equal chance for one to be anyone in society and thus could benefit or suffer from a change, the public interest is by definition enhanced whenever that change is preferred to the status quo "ex ante". This approach is ex ante in the sense that the change is not evaluated after the fact but assessed before the fact without knowing whether one would actually benefit or suffer from it.”
Lok Sang Ho is an Economist. The better economists will tell you that the discipline of economics can be an much art as science, though most people around commerce prefer to claim it more for its scientific implications (unless and until they fail to predict recessions as the economists at the top chartered banks did), than it is claimed for its art suggesting the art of the discipline is more difficult to grasp than the science).
Lok's impression of public interest connotes “impartial” assessment, (certainly a criteria in presumption of judicial involvement). His position on the “ex ante welfare of the representative individual” is most interesting particularly in context of legal matters relating to legal class actions, historically, a relatively new court process.
However, Lok Sang Ho describes the “enhancement” feature which ought to be sought for the public interest as “preferred change to the status quo” does not properly reconcile with the matters of class actions as the represented individual in the class action does more to reconcile legal efforts for efficiency and convenience with scarce resources, but does not presume to consider public interest “before the fact” given that, a class action is not commenced until there are lawful grounds for so doing.
Fenlon J. features case law of class action lawsuits in her reasons (well tied to participation of the SCC Chief Justice's decision making on the case), in order (it would seem) for reasons that escape us. A class action features a representative party, (but party nonetheless).
In the Google matter, the defendants filed a response to civil claim which is a defending document. The plaintiff filed a successful application to have the response(s) to civil claim struck. It was so ordered by Fenlon J leaving only a plaintiff with no defendants.
There is no longer a bona fide defence to the claim. From this vantage point a default judgment would be the anticipated move in fulfillment of the prosecution of the claim. The plaintiff could have sought a default judgment and made the case for a host of head of forecasting damages including punitive ones, the sky was the limit. Why wasn't this done?
Which of the commencement, defence or prosecuting of claim did Google participate in? Google was “innocent” so none of the damages either obtained in fact or could have been obtained and made ready for enforcement were available to leverage Google.
John Stuart Mill explained that “human happiness, even one's own, is in general more successfully pursued by acting on general rules, than by meaning the consequences of each act, and this is still more the course of general happiness, since any other plan would not leave everybody uncertain what to expect, but would involve perpetual quarreling.”
It is difficult to apply John Stuart Mill's position on public interest to the Google case precisely, save that anyone proceeding under Lok Sang Ho's description to pre consideration of public good, would come to conclusion that an unsuccessful appeal at the Supreme Court of Canada will surely lead to a lot of “quarreling”.
The pursuit of the public interest would presume to not act in such as fashion as might cause this type of discontent.
Mills contribution is important to this case in the sense of his description of an understanding of general rules. Even the most fanciful of court litigators and justices must be wary of drifting beyond a the general rules. The general rules understood in any litigation occurs in an adversarial process where the facts of the matter under the rule of law are placed before a person capable of making assessing on a case by case basis with full consideration of similar events which preceded it.
In Robbins v Cambridge Mortgage matter before Fenlon J. (BCSC H130330), failed to recognize the reasons of colleague Christopher Grauer J. made October 3, 2011 under S111171. Simple judicial comity within her own court. Fisher J. later comes to Grauer J's rescue in Law Society of BC v Parsons in 2015 declaring as Grauer J clearly did on page 3 of his October 3, 2011 reasons in Law Society of BC v Robbins that anyone could seek leave to speak on anothers' behalf at court hearing.
Lauri Fenlon J. also failed to recognize the obvious fact that the Grauer J. decision involved counsel opposing Mr. Robbins as being her former boss Elizabeth Lyall acting for the Law Society of B.C. in that matter. Robbins et al have made complaint that Fenlon J. did so on purpose calling into serious question her integrity and credibility.
The point here is that if Fenlon J. is not able to comprehend her constitutional authority in a file involving a circumstance as simple as someone seeking leave for right of audience and is unable to determine when it is 'right under her nose' that a provision in the Legal Profession Act cannot override that constitutional discretion in matters of determining right of audience, certainly Fenlon J. is not the right person to be determining this Google matter involving the progression of decision pertaining to International Comity, and is certainly not the person to have confidence in, in matters relating to the Constitution of Canada and the associated Charter of Rights and Freedoms.
The plaintiff in the Google case is but one B.C. company. Indeed, virtually no information about the companies operators is available online. We do not know who any of the persons in charge of the company (Directors etc.) are. We are not told how many employees there are, or what annual revenues are, something which most companies like this are willing to speak about 'publicly'.
We know that the entire province of British Columbia produces 12% of Canada's nearly $2 trillion economy (11th in the world). Ontario's GDP is nearly 40% of the Canadian total giving it a ranking of 20th in the World (Source: Wikipedia).
BC government revenues annually are estimated at 44 billion (2014), while Google's for 2013 are estimated at $14 billion annually. Google operates 70 offices in 40 countries including office in Nova Scotia, Canada. We do not know Equustek's annual revenues.
In November 2012 the International Federation of Accountants published a consultation paper establishing its own perspective of the public interest. Entitled “Policy Position Paper #5 “A Definition of the Public Interest”: “The International Federation of Accountants defined the public interest as the net benefits derived from, and procedural rigour employed on behalf of, all society in relation to any action, decision or policy.”
“The Assessment of Costs/Benefits evaluates the extent to which something is in the public interest in terms of costs and benefits while the Assessment of Process evaluates the extent to which something is in the public interest as a process – an undertaking that should reflect the qualities of transparency, public accountability, independence, adherence to due process, and participation that is inclusive of a wide range of groups in society.”
We doubt that the International Federation of Accountants would consider this judicial decision in Google either at lower court or court of appeal to have produced “net benefits derived from, and procedural rigour.....on behalf of, all society in relation to the (sic) action, decision or policy.”
Google isn't a defendant, it isn't a third party, or any party for that matter. Google is declared an “innocent” business operating as “virtual” “In Rem” business enterprise. Fenlon J. designates the word “virtual” to the defendants who she determines to be “guilty” later striking their defense for not submitting to court process.
In effect, Google has replaced the actual defendants as de facto defendant. The defendants who are 'guilty' benefit, while Google which is “innocent” become the losers, made responsible for the defendants who ought to be the losers.
The plaintiff Equustek produces a physical product. Making this product requires buildings and manufacturing capacity. The plaintiff's product must be handled by the producer (the plaintiff) and by any purchaser of that product. It has size and is three dimensional.
Google on the other hand does not produce a physical product in the same sense as we understand physical industrial products (i.e motor vehicles, washing machines, blenders, toasters etc.).
The Internet is capable of producing three dimensional products but this is very new, the products are quite small and this capability cannot be reasonably compared to the industry of the plaintiff.
The defendants operate in the same way as the plaintiffs (from what limited factual information the court derived) except the defendants produces their product in a “clandestine” manner. The fact that it is “clandestine” and not “virtual” as determined by the BC Court of Appeal, and suggests that the defendants are operating in secret, they do not want to be discovered because what they are doing is against the law.
The defendants are the opposite of Google who is “innocent”. In what reasonable judicial application should a non party who is “innocent” be made responsible for a defendant party who is “guilty”?
What isn't explained is how the defendants are able to continue to operate if they are in Canada as is suggested without running afoul of tax agencies in Canada or outside of Canada
Wouldn't the court be able to provide an order on application of the plaintiff to obtain tax information from the defendants? Wouldn't tax returns of the defendants who had resigned from properly representing themselves as defendants provide some insight within functioning of available court order enforcement rules as to whether or not the individual defendants were earning money from the sale of product in contravention of Canadian Trade Mark laws?
To our mind there is a deficiency in the fact finding where there was a long period of time available to discover such information through court order enforcement provisions which would follow a default judgment.
A company which produces a manufactured product which is physical cannot be “virtual”. Such a company operates “In Personam”. Google's “virtual” world of operation occurs in the midst of mostly copyright issues, and not in “Trade-mark” “markings” or even “Patent” considerations.
This concept of being “virtual” is more realistically hinged to (“In Rem”) concepts including arguments relating to legal concepts. Left to its own abstract device “virtual” would not condemn the defendant by inference of the language to have done anything wrong. What is was doing wrong was involved “In Rem” activity. If this logic is accepted, then it is surely a stretch to make Google and “innocent”, “non party” the quintessential “In Rem” party the de facto defendant in a case involving damages to a plaintiff which is operating “In Personam”.
The wrong doing occurs between two “In Personam” parties. A good apple and a bad apple. Google is not a fruit in this context, or even a vegetable, perhaps a cloud (for continuity of the abstract).
If the defendant's 'virtualness' is actionable as the case at lower court has determined than this 'virtualness' is unrelated to proof of the actual sale of physical product produced by the plaintiff and stolen by the defendant for its own sale. Websites showing the product for sale are claimed as “virtual” “guilt”. Do we have proof of actual sales of these products to a bona fide purchaser in order to support claim as economic loss?
The court it seems has foregone its obligation that trial would have offered to make assessment of economic loss. Why wasn't this depth of process pursued in order to provide some substantive reasons for the depth of the losses suffered in order to better ascertain the damage to the Trade-mark prior to pivoting to the extremely onerous action by the court of bringing an innocent non party to place of injunction.
If the defendants were operating outside of Canada as Groberman J.A. - believes, and the lower court as fact finder has deduced, then how did they do so? Canadian citizens cannot reside in the United States for instance for more than six months of the year unless they become U.S. Citizens.
On Intellectual Property:
According to Legal Zoom.com a “Comparison Chart” within the realm of defining intellectual property concerns are described here as follows: (1) “Copyright” - “Authors, artists, choreographers, architects and other creative professionals”; (2) “Trade-mark” “Business and product owners”; (3) “Utility Patent” “Inventors”; (4) “Design Patent”: “Inventors and designers”.
A virtual company operating “In Rem” like Google would unlikely be related to item (2) “Trademark”, and is more likely to become involved directly or indirectly with “Copyright”.
The Internet is related to creative works as it is offered in Web design containing design or existing within words and language, as well as other “artistic” endeavours available through “links” which “links” are available to access to the aforementioned material.
The Websites of the defendant by themselves are examples of artistic impression contained in charter rights of freedom of speech. A person or persons designed the Website. We don't who designed the Website, whether it was the defendants themselves or another group. We do know that the links and other information within the Websites is constantly changing. The defendant Website is controlled by certain parties presumed to be the defendant, or associated with the defendant. Both courts admit that links upon these Websites were moved around this proprietorial (“artistic”) Website.
Both levels of court agree that this movement in and about a Website alleged to be controlled by the defendant's whose location could not be identified was not Google's responsibility.
The presumption of the lack of communication from the defendants as admitted by Fenlon J, at lower court, and the subsequent striking of defence, would suggest that the defendants believed the BC court could not get at them where they were at based on the volunteer actions undertaken by Google compelled by the direction the court took.
This would suggest that the approach to furnishing a just outcome taken by Fenlon J. was faulty. The better approach would have been to move to a scenario involving default Judgment. The court has wide discretion in making determination in cases like this and ought to have availed itself of the opportunity to do so and to have had faith in the provisions available under court order enforcement rules.
In the Beals case (supra) there is talk about negligence of lawyers for the appellants involved. What of the lawyers for the defendants in the Google matter?
Did the defendants lawyers advise their clients not to participant further in the court process realizing their clients would be better served after assessing the courts actions?
The defendant would be in breach of Trademark in circumstances where a product under the scope and authority of that lawful Trademark were determined to have been produced from an unauthorized plant or other place for purposes of sale to interested third parties in relation to contract.
Neither court level properly determined where the defendant contracts occurred although it is strongly suggested that it is outside Canada. If the plaintiff is not aware of business being conducted by the defendant within Canada but believes Google to be responsible on the basis that Google is doing business in BC, we must conclude that the provisions of the Act used do not apply to the defendants because they are not doing business in BC.
How can the defendants in breach of the plaintiff's Trade-mark but not doing business in BC or Canada, and Google, not situated in BC, but selling ads to Websites in BC be made ultimately responsible? It would seem to me that in the moment there is relatively certainty the defendant is operating outside B.C. (Canada) then the BC court really doesn't command jurisdiction the way it did when the defendant were in breach while operating in B.C. (Canada), and the provision of the BC rules utilized to make order for injunction was used inappropriately.
Would it not have been easier for the court to assess damages against the defendants following the striking of defence inclusive of punitive damages, daily fines etc and permit Equustek to go after these through Court Order Enforcement rules?
From Canada-United States Law Institution “Constitutional and Legislative Authority for Intergovernmental Agreements Between U.S. States and Canadian Provinces”:
“{H}undreds of arrangements, agreement or memorandums of understanding exist directly between American states and Canadian provinces, without federal participation.” These subnational arrangements are (sic) known as “microdiplomacy”.
“While the actual agreements that exist have been relatively well documented, the legislative and constitutional authority which allow the agreements to exist is rather ambiguous and can differ greatly from state-to-state or province-to-province.”
“For state/provincial agreements to be legitimate, they must occur within certain constitutional parameters of the U.S. or Canadian federal systems.”
“Agreements, made directly between subnational units (states, provinces, territories, cities) are never governed by international law; rather, they may be considered either as contracts, governed by the national law of the parties, or simply informal understandings or arrangements which create a legal obligation.”
“During the their 14th and 88th sessions, Congress issued statements clarifying its stance on the issue of foreign agreements made by the states, holding out that no transborder interaction required their consent, and that they will generally allow states to enter into agreements so long as the states actions did not threaten the centrality of the U.S. Federal government.” “Congress interpreted the aforementioned constitution clauses to imply that “the terms 'compact' and 'agreement' – with (sic) the prohibition being (sic) directed at any combination of these tending to increase the potential power in the States which may encroach upon or interfere with the joint supremacy of the United States.”
“Canadian provinces are substantially more empowered than their American counterpart...when dealing with foreign power. The Constitution Act of 1867, on the issue of treaty power declared that”: “The Parliament and Government of Canada shall have all powers necessary or proper for performing their obligations of Canada or of any Province thereof....arising under treaties between the Empire and such foreign countries...”
“Treaties, as defined by the Vienna Convention on the Law of Treaties of 1969, are” “international agreement(s) ...between States in written form and governed by international law, whether embodied in a single instrument, or in two or more related instruments and whatever its particular designation.”
“Similar to the American Constitution, this Canadian clause seems to have exclusively designated treaty making as a federal power. However, the paramount difference lies in the structure of the Canadian federal system. While the Canadian government retains the authority to make treaties, the power to implement treaties is divided according to the division of powers as per the Constitution Act.”
“If a treaty affects an issue exclusively within the provincial realm, its ratification would require supporting laws to be passed within the province or territories.”
“In Labour Convention Case, Lord Atkin holding that the Canadian federal government “could not..clothe itself with legislative authority inconsistent with the constitution.”
“Nevertheless, though provinces wield some power when it comes to treaty making, the ongoing of their international interactions are still through the same informal agreements and arrangements that their American counterparts use.”
“The Canadian Supreme Court has also upheld the distinction between a treaty and an arrangement. In Attorney General of Ontario v Scott, the court examined the legality of a child support arrangement between Ontario and England. The court defined a treaty as “an agreement between states, political in nature, even though it may contain provisions of a legislative character which may, by themselves or their subsequent enactment, pass into law. But the essential element is that is it produces binding effects between the parties to it.”
“In that case, the agreement at issue was upheld, with the (Supreme Court of Canada) finding that it contained nothing binding, as “the enactments of the two legislatures are complementary but voluntary; the application of each is dependent on that of the other: each is the condition of the other; but that condition possesses nothing binding to its continuance. The essentials a treaty are absent.”
Ad hoc Authority:
“A recent well publicized cross-border joint effort was the development of “enhanced driver's licences” by Washington State and British Columbia. The legislation posed by Washington State stated: “The department [of licensing] may enter into an agreement with the Canadian provinces of British Columbia for the purposes of implementing a border-crossing initiative.”
From Beals v Saldonha, S.C.C.; Neutral Citation: 2003 SCC 72, subject matter: “Conflict of Laws” - “Foreign judgments”-”Enforcement”-”Constitutional Law”-”Charter of Rights” - “Fundamental justice”-”Whether section 2. 7 of Canadian Charter of Rights can shield a Canadian defendant from enforcement of foreign judgment”
Held (Iacobucci, Binnie, and LeBel JJ dissenting): “The appeal should be dismissed. The judgment of the Florida court should be enforced.”
Per the majority in dismissing the appeal inc: McLachlin C.J and Gonthier, Major, Bastarache, Arbour and Deschamps JJ. “International comity and the prevalence of international cross-border transactions and movement call for a moderization of private international law. Subject to the legislatures adapting a different approach, the “real and substantial connection” test, which has until now only been applied to interprovincial judgments, should apply equally to the recognition and enforcement of foreign judgments.” “The test requires that a significant connect exist between the cause of action and the foreign court. Here, “real and substantial connection” test is made out. The appellants entered into a property transaction in Florida when they bought and sold land. As such, there exists both a real and substantial connection between the Florida jurisdiction, the subject matter of the action and the defendants. Since the Florida court properly took jurisdiction, its judgment must be recognized and enforced by a domestic court provided that no defences bar its enforcement.”
“While fraud going to jurisdiction can always be raised before a domestic court to challenge the judgment, the merits of a foreign judgment can be challenged for fraud only where the allegations are new and not the subject of prior adjudication.”
“Here the defence of fraud is not made out.”
“The defence of natural justice is restricted to the form of the foreign procedure and to due process and does not relate to the merits of the case. If that procedure, while valid there, is not in accordance with Canada's concept of natural justice, the foreign judgment will be rejected.”
“In the circumstances of this case, the defence does not arise.”
“The appellants failed to raise any reasonable apprehension of unfairness.”
“Negligent (legal advice) cannot be a bar to the respondents of the respondent's judgment.”
“The public policy defence prevents the enforcement of a foreign judgment which is contrary to the Canadian concept of justice, and turns on whether a foreign law is contrary to our view of basic morality.” “The award of damages by the Florida jury does not violate our principle of morality such that enforcement of the monetary judgment would shake the conscience of the reasonable Canadian.”
“The sums involved, although they have grown large, are not by themselves a basis to refuse enforcement of the foreign judgment in Canada. The public policy defence is not meant to bar enforcement of a judgment rendered by a foreign court with a real and substantial connection to the cause of action.....the recognition and enforcement of the Florida judgment by a Canadian court would not constitute a violation of s. 7 of the Canadian Charter of Rights and Freedoms. Given that section 7 does not shield a Canadian resident from the financial effects of a foreign judgment rendered by a Canadian court, its should not shield a Canadian defendant from the enforcement of a foreign judgment.”
Per Iacobucci and Binnie J.J. (dissenting): “The real and substantial connection” test provides an appropriate conceptual basis for the enforcement of final judgments obtained in foreign jurisdictions.” “While there is no doubt the Florida courts had jurisdiction over the dispute since the land was located in that jurisdiction, the question is whether the appellants in this proceeding were sufficiently informed of the case against them then to allow them to determine, in a reasonable way, whether to participate in the Florida action, or let it go by default: In this case the appellants came within the traditional limits of the natural justice defence and the Ontario courts ought not to give effect to the Florida judgment.”
Per LeBel J (dissenting): “The real and substantial connection test should be modified significantly when it is applied to judgments originating outside the Canadian federation. Specifically, the assessment of the propriety of the foreign court's jurisdiction should be carried out in a way that acknowledges the additional hardship on a defendant who is required to litigate in a foreign country. The purposive, principled framework should not be confirmed, however to be question of jurisdiction. The impeachment defences of public policy fraud and natural justice ought to be reformulated.”
“A judgment based on inadequate notice is violation of natural justice. A default judgment that rests on such violation should not be enforced.”
“Lastly, the respondents complaint did not indicate that they were claiming damages on behalf of corporations, whose names appeared nowhere in the pleadings, in which they had an interest, and that they would be seeking damages for a corporations lost opportunity to build an undefined number of homes on land to which neither the respondents nor the corporation held title.”
“Nor were the appellants served with the court order for mandatory mediation which provided that all parties were required to participate or, as required by the Florida rules, with notice of the experts the respondents proposed to call at the damages assessment.”
“Furthermore, a party must be made aware of the potential jeopardy faced.” “The appellants were not made aware of various events occurring in the Florida court”, “a 1987 court order striking out the claim for punitive damages, against the other defendants – the realtor and the title insurers – on ground applicable, had they known about it, to the appellants. There were not told, after being noted in default and before jury trial, that the respondents had made a deal with the realtor to delete cliams for treble damages, punitive damages and statutory violations.”
“To make an informed decision, they should have been told in general terms of the case they had to meet....and been given an indication of the jeopardy they faced in terms of damages.”
“The appellants decided not to defend the case set out against them...the case was sufficiently transformed.”

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