Connect with us

Dominica

Lawyer says CCJ ruling against CLICO may open door for others – Dominica News Online

Published

on


Zahidha James

Dominican lawyer based in Barbados, Zahidha James believes that the judgement of the Caribbean Court of Justice (CCJ) directing Clico International Life Insurance Limited (CLICO), to pay a debt to two Dominicans, may present an opportunity for other persons who find themselves in similar situations.

James represented Dominican brothers, Octavius and Laurent John in the matter against CLICO.

In the judgement, which was delivered on April 18, 2019, the CCJ ordered CLICO to pay EC$1,423,329.46 to Octavius John and Laurent John within ten days of the Court’s judgment.

CLICO, a Barbadian insurance and investment company, in which the John brothers had invested, ran into financial difficulties and the brothers took CLICO to court after the company failed to pay when their policies expired.

In September 2010, the High Court of Dominica granted the complainants a default judgement against CLICO in the sum of EC$1,423,329.46 plus interest. However, from the 14th of April 2011, CLICO was placed under judicial management  which prevented the John brothers from collecting any payment despite having obtained a consent order in February that same year.

The brothers sought to enforce their Dominican judgment against CLICO in Barbados but that move was rejected by the Barbados Court of Appeal which then granted them leave to appeal to the CCJ.

James explained during an interview with Dominica News Online (DNO), that she was contacted by Octavius John after he had gone through a long process of being told, even by certain ministers in various jurisdictions, that it was futile to pursue the case, as CLICO was under judicial management and could not be sued.

She said that after doing a lot of research on judicial management, she became quite confident that the Johns had a good case.

“I would not have taken the case if I didn’t think we would eventually win,” James stated.

She said that in addition to the inability of the brothers to collect on the judgement because the company was under judicial management, another influencing factor was that CLICO had given the assurance that they would start making payments by April 2011, but this was the exact month they went under Judicial Management.

“And so, what happened to my clients is that the time they could have taken to push to enforce their court order, they waited, based on assurances from CLICO that they would be paid, and they were held off in trying to enforce their judgement and that was influential in the case,” James noted. “The Court felt that from a fairness standpoint, they deserved to collect on their money.”

The court emphasized strongly that CLICO,  as argued in the appellants submissions, had no viable plan to address policy holders after 8 years, and that Judicial Management should be “temporary” which, according to James, was a major factor in their decision.

She stated that the court was so moved by the Johns’ predicament and the evidence in the matter, that it opted to award the money within 10 days.

“Our original application was for leave to enforce the Dominica judgment which would have required further litigation. They were persuaded by the evidence to use their wide discretion however, to award the money now and therefore save the Johns further costly litigation,” she explained.

James said there’s also a human element to the judgement where the court was concerned about having a person who is suffering financially and health-wise, with a judgement that puts them in a worse position than anybody else and with no plan in place to address their claim.

“So, if you are a person who falls within any of these categories which I don’t think is unlikely, because I think quite a few people are affected financially and health-wise by CLICO, and possibly might have experienced similar treatment by the company in one form or the other. They may very well look at this case and say ‘I kind of fall into this category’,” James suggested. “How many people that is? We can’t say for sure; it depends on each individual case but now, it’s sort of open for people to re-evaluate and see where they fall; see where this proposed scheme affects them or doesn’t affect them, and then how it compares with their individual situation.”

When asked about the significance of the case for her as a lawyer, James pointed out that it was her interest in human rights that prompted her to become a lawyer and that she has always treated the case as a human rights issue.

“So, I was grateful for the opportunity to help people and it was the most amazing thing to be able to say to my client look, we’ve had success and we’ve had final success at the very end,” she remarked. “For me as an attorney, I’m just happy that this may have indications for other people who might be suffering. It might give them some hope.”

She advises CLICO to prioritize and accelerate its plans with regard to restructuring the company, with the judicial management process and addressing claims, “if they’ve not been doing that before.”

James, who is the daughter of former prime minister of Dominica, Edison James, earned a first degree in Economics at the University of Toronto in Canada. She then studied law in England and was subsequently called to the bar there. She’s also called to the bar in Trinidad and Tobago where she lived for two years before moving to Barbados where she has been practising law for the past ten years.

James has also been called in Dominica.

 

Read CCJ judgement summary…





Source: Source link

Dominica

COVID-19: Pronouncement of construction an essential service.

Published

on

By


BCAD Executive met by teleconference on 3rd April 2020 to deliberate on the Government’s consideration of construction as an essential service, as obtained in SRO 15 of 2020, and to review this new situation as it will impact and potentially affect the local construction sector within the circumstances of the COVID19 pandemic, and the sector’s collateral impact on the wider private sector and the public as a whole.

 

Contributions were received and made by the following Executive Members:

Mr Gregor Fortune

Mr Delbert Paris

Mr Kevin Henderson

Mr Melkezideck Toussaint,

Mr Steve Astaphan,

Mr Stewart Paris, and

Mr Anthony Le Blanc.

 

SRO 15 of 2020 – Emergency Power (Disaster) – (Curfew) Order

 SRO 15 of 2020 was Gazetted and came into effect on 1st April 2020.

  1. Section 7(1)(g) provides “Subject to paragraphs 3 and 5, every non-essential establishment, or business shall remain closed except for the following – … (g) Construction and manufacturing projects, … may open between the hours of 6:00 am and 4:00m pm Monday to Friday.
  2. Section 7(1)(g) (i) to (v) provides that work on-site are subject to compliance with increased attention to sanitation, provision of additional PPE (face mask) and maintenance of 2 m ( 6 ft 8”) social distances for workmen as far as reasonably possible.
  3. Section 12 limits passengers to one person per row with no passengers allowed at the front with the driver.

 

Support and Concerns:

The Meeting expressed support for activities and actions which are aimed at curtailing the spread of the COVID19 epidemic in Dominica.  That BCAD Executive supports the efforts of the Government of Dominica through the principal agency of the Ministry of Health and in general, supports the provisions in the SRO 15 which seek to encourage persons to stay home and save lives.

However, the Meeting had serious concerns with some of the provisions of the SRO 15 and its development, as it relates to the consideration of Construction as an essential service:

  • Public Information and Consultation.
  • Lack of Forewarning: The Meeting expressed concern, as was expressed in its reaction of 23rd March 2020, that the State has failed to publish a plan as to what is to be expected at each level of the COVID19 epidemic. Hence, both the pronouncements of 22nd March 2019 and that of the 1st April 2020 provided no forewarning or time to wind down activities, which would have enabled contractors to do a shutdown of non-essential or non-critical work properly.
    1. Absence of Consultation with the Local Sector: The meeting expressed surprised that the local construction sector was not consulted, and certainly the executive of BCAD had no input in the SRO which pronounced that construction projects are to be considered as essential services and ought to continue as normal in this COVIFD19 pandemic.
  • Overall responsibility of Limiting Spread of COVIOD19: The Meeting agreed that every contractor, and every employee in the construction sector, has a personal and collective responsibility to limit the spread of COIVID19, and therefore should not engage in work or other activity which has the potential to undermine the efforts of others, including the State. Hence, the meeting found that the present pronouncement of the SRO at section 7cannot be supported as:
    1. it is impractical to engage in construction site activities and expect that workmen will continually be able to maintain a 2 m(6 ft 8”) distance between them and work efficiently,
    2. given, that construction workers, on many existing projects, come from all over the island, it is, therefore, impractical to expect public transport to be readily available to carry workers to site if they are to comply with the requirement to operate at 25% capacity (1 per row) for the same fare,
    3. each exposure of a construction worker on a site or during the commute exposes his/her whole household to the possibility of infection with COIVID19.
  • Productivity and Cost.
    1. The Meeting found that the Contractor will likely be operating inefficiently, with less than ideal staffing, and at low productivity and increased cost for work which has already be priced under a contract, given the limitations provided under the curfew and SRO 15 Clause 7 and 12. It was cited that
      • it would be unlikely to have a full workday if key workmen have to commute from remote locations,
      • some workmen will not be available on account of either fear of contracting the disease, or having to stay home with minors, or having taken a proactive stance about limiting the spread of the disease, and
      • In addition to the new direct cost of the extra PPE required, these may not be readily available, and therefore require not only extra procurement cost but also, may require extra supervisory cost in order to ensure their utilisation.
    2. To mitigate against (a) (ii) above, the possibility of extra transportation cost, it is likely that the Contractor would have to contribute to commuting
    3. That it is an extra cost to the State and diverts resources from other more critical aspects of managing COVID19 if police officers or other State officials have to divert resources to ensure that construction sites comply with the requirements of SRO 15.
  1. Health and Safety and Legal Framework: The meeting noted that Contractors as employers are still responsible for the health and safety of employees on the construction site.  Therefore, knowingly engaging them and exposing them and their families to COVID19, either on the site or during commute to or from the site, places employees in a compromised health and safety situation.   Further, that any incident of infection, or suspected infection, of an employee on-site, will likely result in the closing down of the site as all employees are likely to be quarantined.
  2. Duration and Implication of Consideration of Construction as an “Essential Service”: The Meeting expressed concern, that given that Construction was considered an essential service, the majority by volume of Government procured construction services were not made available to be undertaken by local contractors or construction workers. Further, it questioned whether this pronouncement would be permanent for all other disasters, or only this time.

 

Recommendations.

The BCAD Executive therefore strongly recommend the following:

  • That all Builders and Contractors, our employees and the general public are encouraged to stay at home and save lives, unless their construction activity can impact positively on limiting the spread or management of COVID19, or in some way essential for the proper functioning of the State.
  • That generally construction workers should stay at home, spending time with family and doing the long outstanding trade work at home with the help of family members.
  • That, in the circumstances of limiting the spread and enhancing the management of COVID19, construction projects are to be generally and rightly considered as non-essential economic activities. Hence BCAD Executive requests that, until at least the conclusion of the emergency period dictated under SRO 15,
    1. local Builders and Contractors should not be engaged in, or continue, construction works as normal, neither should they endanger their employees by requiring that they attend to site work,
    2. the Public Sector shuts down its construction projects and encourages consultants to work from home, and construction workers to stay at home and save lives
    3. That where restrictions are to be imposed, some forewarning be given in order that non-essential project works are brought to a close safely and with all critical elements concluded.
  • That more private sector business organisations be brought into discussions about finding more creative ways of limiting the spread and enhancing the management of COVID19.





Source: Source link

Continue Reading

Dominica

IN PICTURES: Dominica parliament holds first meeting since COVID-19 declared pandemic

Published

on

By


The Dominica parliament convened this morning for the Second Meeting of The First Session of The Tenth Parliament where two COVID-19-related bills were introduced for debate.

Dominica News Online (DNO) got some photographs of parliamentarians, most of them wearing masks, as they arrived at the Parliament building. Photos by Cecil Clarke.





Source: Source link

Continue Reading

Dominica

COVID-19: Pronouncement of construction an essential service.

Published

on

By


BCAD Executive met by teleconference on 3rd April 2020 to deliberate on the Government’s consideration of construction as an essential service, as obtained in SRO 15 of 2020, and to review this new situation as it will impact and potentially affect the local construction sector within the circumstances of the COVID19 pandemic, and the sector’s collateral impact on the wider private sector and the public as a whole.

 

Contributions were received and made by the following Executive Members:

Mr Gregor Fortune

Mr Delbert Paris

Mr Kevin Henderson

Mr Melkezideck Toussaint,

Mr Steve Astaphan,

Mr Stewart Paris, and

Mr Anthony Le Blanc.

 

SRO 15 of 2020 – Emergency Power (Disaster) – (Curfew) Order

 SRO 15 of 2020 was Gazetted and came into effect on 1st April 2020.

  1. Section 7(1)(g) provides “Subject to paragraphs 3 and 5, every non-essential establishment, or business shall remain closed except for the following – … (g) Construction and manufacturing projects, … may open between the hours of 6:00 am and 4:00m pm Monday to Friday.
  2. Section 7(1)(g) (i) to (v) provides that work on-site are subject to compliance with increased attention to sanitation, provision of additional PPE (face mask) and maintenance of 2 m ( 6 ft 8”) social distances for workmen as far as reasonably possible.
  3. Section 12 limits passengers to one person per row with no passengers allowed at the front with the driver.

 

Support and Concerns:

The Meeting expressed support for activities and actions which are aimed at curtailing the spread of the COVID19 epidemic in Dominica.  That BCAD Executive supports the efforts of the Government of Dominica through the principal agency of the Ministry of Health and in general, supports the provisions in the SRO 15 which seek to encourage persons to stay home and save lives.

However, the Meeting had serious concerns with some of the provisions of the SRO 15 and its development, as it relates to the consideration of Construction as an essential service:

  • Public Information and Consultation.
  • Lack of Forewarning: The Meeting expressed concern, as was expressed in its reaction of 23rd March 2020, that the State has failed to publish a plan as to what is to be expected at each level of the COVID19 epidemic. Hence, both the pronouncements of 22nd March 2019 and that of the 1st April 2020 provided no forewarning or time to wind down activities, which would have enabled contractors to do a shutdown of non-essential or non-critical work properly.
    1. Absence of Consultation with the Local Sector: The meeting expressed surprised that the local construction sector was not consulted, and certainly the executive of BCAD had no input in the SRO which pronounced that construction projects are to be considered as essential services and ought to continue as normal in this COVIFD19 pandemic.
  • Overall responsibility of Limiting Spread of COVIOD19: The Meeting agreed that every contractor, and every employee in the construction sector, has a personal and collective responsibility to limit the spread of COIVID19, and therefore should not engage in work or other activity which has the potential to undermine the efforts of others, including the State. Hence, the meeting found that the present pronouncement of the SRO at section 7cannot be supported as:
    1. it is impractical to engage in construction site activities and expect that workmen will continually be able to maintain a 2 m(6 ft 8”) distance between them and work efficiently,
    2. given, that construction workers, on many existing projects, come from all over the island, it is, therefore, impractical to expect public transport to be readily available to carry workers to site if they are to comply with the requirement to operate at 25% capacity (1 per row) for the same fare,
    3. each exposure of a construction worker on a site or during the commute exposes his/her whole household to the possibility of infection with COIVID19.
  • Productivity and Cost.
    1. The Meeting found that the Contractor will likely be operating inefficiently, with less than ideal staffing, and at low productivity and increased cost for work which has already be priced under a contract, given the limitations provided under the curfew and SRO 15 Clause 7 and 12. It was cited that
      • it would be unlikely to have a full workday if key workmen have to commute from remote locations,
      • some workmen will not be available on account of either fear of contracting the disease, or having to stay home with minors, or having taken a proactive stance about limiting the spread of the disease, and
      • In addition to the new direct cost of the extra PPE required, these may not be readily available, and therefore require not only extra procurement cost but also, may require extra supervisory cost in order to ensure their utilisation.
    2. To mitigate against (a) (ii) above, the possibility of extra transportation cost, it is likely that the Contractor would have to contribute to commuting
    3. That it is an extra cost to the State and diverts resources from other more critical aspects of managing COVID19 if police officers or other State officials have to divert resources to ensure that construction sites comply with the requirements of SRO 15.
  1. Health and Safety and Legal Framework: The meeting noted that Contractors as employers are still responsible for the health and safety of employees on the construction site.  Therefore, knowingly engaging them and exposing them and their families to COVID19, either on the site or during commute to or from the site, places employees in a compromised health and safety situation.   Further, that any incident of infection, or suspected infection, of an employee on-site, will likely result in the closing down of the site as all employees are likely to be quarantined.
  2. Duration and Implication of Consideration of Construction as an “Essential Service”: The Meeting expressed concern, that given that Construction was considered an essential service, the majority by volume of Government procured construction services were not made available to be undertaken by local contractors or construction workers. Further, it questioned whether this pronouncement would be permanent for all other disasters, or only this time.

 

Recommendations.

The BCAD Executive therefore strongly recommend the following:

  • That all Builders and Contractors, our employees and the general public are encouraged to stay at home and save lives, unless their construction activity can impact positively on limiting the spread or management of COVID19, or in some way essential for the proper functioning of the State.
  • That generally construction workers should stay at home, spending time with family and doing the long outstanding trade work at home with the help of family members.
  • That, in the circumstances of limiting the spread and enhancing the management of COVID19, construction projects are to be generally and rightly considered as non-essential economic activities. Hence BCAD Executive requests that, until at least the conclusion of the emergency period dictated under SRO 15,
    1. local Builders and Contractors should not be engaged in, or continue, construction works as normal, neither should they endanger their employees by requiring that they attend to site work,
    2. the Public Sector shuts down its construction projects and encourages consultants to work from home, and construction workers to stay at home and save lives
    3. That where restrictions are to be imposed, some forewarning be given in order that non-essential project works are brought to a close safely and with all critical elements concluded.
  • That more private sector business organisations be brought into discussions about finding more creative ways of limiting the spread and enhancing the management of COVID19.





Source: Source link

Continue Reading

Trending