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5a1 Alternative Remedies Presentation

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Presentation on theme: "5a1 Alternative Remedies Presentation"— Presentation transcript:

1 5a1 Alternative Remedies Presentation
Special Thanks To: Chanika Carrington Aimee  Partap Olivia Dos Santos Nicola Budd Jewel Barrow Audrey Burgess



4 The focus will be on What is The Licensing Authority
What remedies Can be obtained Remedies Available in Barbados

5 What is a Dancehall Licence?
A Dancehall licence is a licence which permits public operation of an establishment that can be used for public dancing or singing. The Licensing Authority has the power to grant such licence for any period not exceeding twelve months to such persons as it thinks fit to use places such as theatres or dance halls.

6 The Licensing Authority acts as a tribunal in these matters
The Licensing Authority acts as a tribunal in these matters. It is an alternative to court

7 The Theatre and Dance Hall Act (1934)
S.2 “dance hall” means any building, tent or other erection open to the public gratuitously or otherwise, where public dancing or singing takes place. S.2 “licence” means a licence granted in the form in the Schedule and “licensed” shall be construed accordingly.

8 Who holds the office of the LicenSing authority
Section 2 of the Act states that the Licensing Authority is the Magistrate assigned to the district where the theatre or dance hall is situated.

9 What can be done about nuisance issuing from such establishments?

10 Remedies Available There are 2 remedies available from the Licensing Authority when individual complain about a licensed premises. 1. Cancellation of the licence 2. Suspension of the licence

11 possible complaints from clients
Scenario 1 The licensed premise is carrying on activities which may constitute a nuisance or are injurious to public morals. What can be done to bring this activity to an end?

12 According to the Act If a written complaint is made to the Licensing Authority in your area, the premises may have its licence cancelled or suspended for a period not exceeding 6 months. However, a complainant must live within half a mile from the dancehall. The complainant must satisfy the court with proof made by oath.

13 Options of The Licensing Authority
The Licensing Authority may: (a) attach such reasonable conditions to the terms of any suspension imposed under this section as would, in its opinion, ensure that section 4B is complied with, so, however, that no suspension of any licence shall exceed a period of more than twenty-one consecutive days or forty-two days altogether in respect of any one complaint or group of complaints

14 Cont’d (b) cancel any such licence if the conditions imposed by it have not been complied with.

15 Conditions for Suspension/Cancellation
Section 4 of the Said Act 1. Where the activities constitute a nuisance or are injurious to public morals. 2. Where there has been discrimination by the occupier of the premises or his servants. Discrimination on grounds of race, colour, religion or sex is strictly prohibited. 3. Where there was annoyance in the vicinity due to excessive noise.

16 Why is the Licensing Authority Beneficial?
Such quasi-judicial bodies enable citizens to have an alternative route to litigation and spare them the cost of it as well. However, the Authority shall keep within the arena of fair play by allowing licensees against whom complaints have been made to be represented by an Attorney-at-Law, so that they may duly respond to the allegations made against them.

17 In Barbados There is no Licensing Authority in relation to Dancehalls.
Alternative remedies are: Report the matter to the police, who will warn the owners or operators of the premises that they are disturbing the peace under S31 of the Public Order Act. The owners or operators may be arrested . Use negotiation or mediation on terms and conditions which will satisfy both parties.

18 Public Nuisance This is the situation in which an individual engages in some harmful activity which affects the general public or a section of the public. It is a crime actionable by the Attorney General. However an individual can bring an action if he/she can prove that the defendant has caused him “particular damage over and above that suffered by the general public”.

19 For the individual to show particular damage
He must have suffered damage which is of a different kind from that of the general public or He must have suffered damage to a greater degree than other members of the general public. Particular Damages : These can occur, according to Campbell v Paddington Corp, where the defendant’s structure obstructs the view from the rooms thus reducing their letting value.

20 Private Nuisance It is a tort
The plaintiff must have an interest in the land Damages are given at the discretion of the court. Action where There is physical injury to the plaintiff’s property There is substantial interference with the use and enjoyment of his land There is Interference with easements or right to access

21 The court will consider
Where the defendant’s activity is reasonable according to the ordinary usage of the mankind living in a particular society” - Sedleight – Denfield v O’ Callaghan With respect to the enjoyment of the land, the locality of the incident. Whether it is beneficial to the community or just for spite or annoyance of the plaintiff the duration of the damage- whether temporary or permanent.

22 Application to Dance Hall
This may apply to a dancehall located in the client’s neighbourhood, which can change the character of the neighbourhood, thus reducing the property values in the area. Illustrative of this is Vanderpant v Mayfair Hotel Co Ltd where the court took into consideration the material interfering as well as the circumstances and character of the locality in which the complainant lives. It was found to be a nuisance. It did not matter if the defendant’s activity was being carried on or could be prevented. The client could seek an injunction and damages for the injuries suffered.

23 Licensing Authority Liquor Liquor Liquor

24 What I will be discussion
Licensing Committee How to revoke/ cancel a License On what grounds can you object to a license

25 What is the licensing Committee
It is a statutory empowered body which determines who can get a liquor licence.

26 Of Whom does it consist According to s 9 of the Liquor Licence Act of Barbados and s 5 of the Liquor Licence Act of Trinidad, it consists of a Magistrate or other authorised officers

27 How to revoke a licence S 19 in Barbados allows a person to object to the granting of a licence by the Licensing Committee within 7 days of its approval. In Trinidad and Tobago there is a notice period of 28 days before the Licensing Committee can revoke a licence.

28 Cont’d In Trinidad and Tobago, objections can be made if the licensed property is within 400 meters of a a church or other place of worship a school

29 Other objections can be based on the following:
Other grounds of objections can be based on the following If the applicant is a person of bad character. If the property does not meet the requirements of the health or building code. Where the applicant has already been convicted of an arrestable offence.

30 Trinidad and Tobago Cont’d
Where the district is adequately serviced by licensed premises. The applicant has already had his/her licence revoked s21 B where the licensed person, servant or agency discriminates against any person because of his/her race, colour, creed, religion or sex. S 21 C where the licensed premises is cause of public annoyance.

31 Persons can object on the grounds that it is an offence
To refuse the police entry on the property to carry out their duty, To use the premise as a brothel, or as a place for prostitution. To sell alcohol to a person under the age of 16 years old, in Trinidad it would be under the age of 18 Permit drunkenness, quarrels, riot, or sell intoxicating substances to an already intoxicated person.

32 Trinidad and Tobago Industrial Court

33 The focus will be on : The Creation and Form of the Tribunal
Its Role and Function Remedies available

34 Creation The Industrial Court was established in by the Industrial Stabilisation Act, which has since been repealed and replaced in 1972 by the Industrial Relations Act (IRA), Chapter 88:01. Under section 4 of the Industrial Relations Act, the Court was established as a superior court of record which has a status equivalent to that of a High Court of Justice. This Court was established as a result of a number of strikes by workers and lockouts by employers that affected the Trinidad and Tobago economy from

35 Organisation The Industrial Court comprises: 22 Judges
A President who is Head of the Court A Vice-President A Chairman, and 19 members of the court, consisting of experienced attorneys, economists, accountants and persons experienced in industrial relations

36 Role of the Court The Industrial court is a specialized court with a peculiar jurisdiction. It is responsible for dispensing social justice by “upholding the principles and practices of good Industrial Relations as pillars of Industrial Peace, Economic and Social Development”. The court was first established, under the Industrial Stabilisation Act:

37 Role of the Court To ensure that employers recognize Trade Unions and other Organizations that were representative of a majority of workers; To establish a prompt and efficient system for the settlement of Trade disputes; To regulate the price of commodities; To regulate any matters incidental to the functions related above.

38 Jurisdiction of the Court
the Industrial Court has jurisdiction as a superior court of record to: Hear and determine Trade disputes; Register collective agreements and hear and determine any matters that arise from the registration of such agreements; Hear and determine any industrial relations or offences under the IRA; Hear and determine any other matter brought before the court in accordance with the IRA provisions.

39 Additional areas of Jurisdiction
Minimum Wages Act Chapter 88:04, which upholds minimum wages and terms and conditions of employment; Retrenchment and Severance Benefits Act 1985, which prescribes the procedure to be followed in the event of redundancy and provides for severance payments to retrenched workers; Maternity Protection Act 1998, which seeks to provide a minimum level of maternity leave, benefits and protection; Occupational Safety and Health Act 2004, which upholds the safety, health and welfare of persons at work.

40 The Industrial Court consists of two divisions:
The General Services Division, which deals with all disputes except those where the dispute involves workers in essential services; The Essential Services Division, which deals with disputes comprising of workers in essential services.

41 the Court has : A Special Tribunal established by the Civil Service Act Chapter 23:01, which hears and determines disputes in the Civil Service, Police Service, Fire Service, Prison Service, Teaching Service and Supplemental Police and Central Bank; An Occupational Safety and Health Division that focuses on the efficient exercise of the Court’s jurisdiction under the Occupational Safety and Health Act.

42 Remedies Under section 7(7) of the IRA, the Court may impose fines, in addition to any other remedies the Court thinks fit, for contempt in relation to a failure to comply with its orders or awards. Moreover, under section 12 of the IRA, the Industrial Court shall make all such recommendations and do all such things as appear to be right and proper for the reconciliation of the parties and shall take the necessary steps to secure a settlement of disputes by conciliation.

43 Effect of the Court’s Decisions
Finally, the Court’s work has a direct impact on the general public because the court sets out principles and guidelines for the conduct of good industrial relations which promote industrial stability and ensure that the public has access to essential services.

44 The Barbados Perspective
Labour Department Duties of Chief Labour Officer It shall be the duty of the Chief Labour Officer: (a) to receive and investigate all representations, whether of employers or of employees, made to him concerning any business, trade, occupation, or employment with a view to the settlement of disputes and grievances and to pursue conciliation especially regarding hours and conditions of work and regulations of wages and to report thereon to the Minister ;

45 Conciliation Process The Chief Labour Officer is mandated to conciliate in disputes between employers and employees.  The process is as follows: If discussions between the employer and employee breakdown at domestic level, either party ( or a representative for ther employee it the Trade Union) informs the Labour Department in writing, that a dispute and requests the services of the Chief Labour Officer in the conciliation process.

46 Conciliation Process cont’d
A meeting is convened with the agreement of the employer and Union which is chaired by the Chief Labour Officer or  his/her representative, who guides the conciliation process.

47 If the first Conciliation Fails
The next level, conciliated by the Minister of Labour; if the matter still remains unresolved It can be referred to the highest level that of the Prime Minister, If conciliation efforts fail, the parties can agree to seek binding arbitration.

48 conciliation The process is voluntary.
Chief Labour Officer has no authority, to effect or impose a settlement on either side nor to bind either party to decisions made. The office of the Chief Labour Officer is, however, highly respected in this process as that of an experienced industrial relations practitioner. 

49 Disputes are referred to the Department for conciliation on such matters as:
Work dismissals Collective agreements Redundancy Wages Conditions of Employment            

50 Tribunal under the Severance Payment Act
SIXTH SCHEDULE (Section 38(5)) For the purposes of section 38, the tribunal shall consist of: A chairman who is appointed by the Minister. The chairman is a practicing solicitor or barrister for not less than 5 years not less than 2 other members who shall be appointed by the Minister. Other members of the tribunal shall be appointed by the Minister in equal numbers from persons nominated by organisations representing workers and employers in Barbados

51 Severance Payment Act Remedies are available under Third Schedule
2. (1) Sub-paragraphs (2) to (4) shall have effect in relation to any case where: 1 (a) under anv provision contained in this Act a tribunal is empowered to determine that an employer is liable to pay to an employee either the whole or part of the severance payment to which the employee would have been entitled apart from any other provision mentioned therein; and (b) the tribunal determines that the employer is liable to pay part but not the whole of that severance payment.

52 Third schedule (2) There shall be ascertained what proportional part of the severance payment bears to the whole of it (in this paragraph referred to as the“ relevant proportion “). (3) There shall also be ascertained what, in accordance with paragraph 1, would have been the amount of the rebate payable in respect of that severance payment if the employer had been liable to pay the whole of it.

53 The Law Association of Trinidad and Tobago

54 What I will be Looking at
Who makes up the Association Their Aims and Objectives The role of the The role of the Discipline Committee

The Law Association of Trinidad and Tobago is a body corporate established under section 3 of the 1986 Legal Profession Act (LPA), whose membership comprises practitioners, non- practitioners and honorary members.

56 Who Makes up the Bar association
The President, The Vice President, The Treasurer, Ten Senior Ordinary members Five Junior Ordinary members

57 the aims and objectives of the Law Association.
The Aims and Objective are laid out in section s5. These include: (a) to maintain and improve the standards of conduct and proficiency of the legal profession in Trinidad and Tobago; (b) to represent and protect the interests of the legal profession in Trinidad and Tobago; (c) to protect and assist the public in Trinidad and Tobago in all matters relating to the law;

58 Bar Association cont’d
(d) to promote good relations within the profession, between the profession and persons concerned in the administration of justice in Trinidad and Tobago and between the profession and the public generally; (e) to promote good relations between the profession and professional bodies of the legal profession in other countries and to participate in the activities of any international association of lawyers and to become a member thereof;

59 Cont’d (f) to promote, maintain and support the administration of justice and the rule of law; (g) to do such other things as are incidental or conducive to the achievement of the purposes set out at (a) to (f).

60 With respect to its role and function, the Bar Association
“... sees as one of its main roles the duty and responsibility to uphold the Constitution and the rule of law. Thus, it is fully committed to doing so by participating in debates to foster the notion of the supremacy of the Constitution and the law as a whole and by commenting on any situation concerning the Constitution. The Association seeks to achieve its goals at all times in the noble tradition of professional independence, integrity, and social responsibility.”

61 Disciplinary Committee
Who make up the Committee Who does it provides for The President of the Association Fifteen other persons appointed by the Chief Justice after deliberations with the Council. The an aggrieved client any  person who has been directly affected by any professional misconduct, These individual must have leave of the Committee, to bring a complaint against an attorney-at-law.

62 The Disciplinary Committee
Regulates all attorneys, considers complaints against them and where appropriate can take action against them. Attorney client conduct is outlined in Third Schedule in The Legal Profession Act contains a Code of Ethics and also in Paragraphs 21 to 35 deal and Part B

63 Generally, when acting for a client, an attorney must:
Act competently and diligently. Deal with work within a reasonable time. At all times in entering into discussions or agreements with the client’s opponents to do so only with the client’s express consent and instructions. Keep the client’s affairs completely confidential. Deal with the client courteously.

64 Cont’d Provide the client with legal advice to the best of his or her ability and act in the client’s best interests. Charge the client fees that are fair and reasonable and in accordance with the time expended and the complexity of the work. Act in good faith and conduct himself in a professional manner.

65 Disciplinary Proceedings
Forms are available to persons at the office of the Disciplinary Committee. Two forms are provided: form 1 is the formal application to the Disciplinary Committee, and form 2 is an affidavit (which must contain the grounds upon which the complaint is made) which must be sworn to by the person before a Justice of the Peace, or a Commissioner of Affidavits, or a Notary Public. After the forms are filled out they are to be filed with the Secretary of the Disciplinary Committee.

66 The Role The Disciplinary Committee provides an avenue for an aggrieved client to bring a complaint against an attorney-at-law. The Disciplinary Committee regulates all attorneys, considers complaints against them and where appropriate can take matters against them. Where in the opinion of the Committee a prima facie case has been made out against the attorney, proceedings will be initiated. At the end of the hearing, the committee would give a decision.

67 The Committee has the authority to
Impose a fine in a sum that the committee thinks proper Order that the Attorney pay the complainant a sum of money for compensation and reimbursement as well as any other expenses he may have incurred in pursuing his complaint, including legal costs (if any), transport for witnesses etc.

68 The Role Cont’d In serious cases, the committee can, in addition, refer its findings to the Chief Justice and the Attorney General which may lead to the Attorney being deprived of his right to practice law

69 The Law Association of BarBadods

70 Topics Considered What makes up the Committee Its role
Remedies and Procedure

71 What makes up the committee
The committee according to the Fourth Schedule of the Act comprises 7 attorneys-at-law of whom at least 3 shall be of not less than 10 years' standing in the profession. These attorneys shall be nominated by the Bar Association by instrument in writing addressed to the Registrar. Their tenure can not exceed 2 years but they can be re-nominated.

72 Cont’d The Act states that there shall be a Chairman and a Deputy Chairman of the Committee who shall be elected by the Committee from among the members of at least 10 years' standing in the legal profession.

73 The role of the committee
The Disciplinary Committee’s role is, according to section 18 (1) of the Barbados Legal Profession Act is to uphold standards of professional conduct for attorneys-at-law. They make rules in relation to the standards of professional etiquette and profession conduct as I said before, and the breaking of such rules constitute grave professional misconduct

74 Cont’d In the event that a client or any person wants to complain against an attorney-at- law for professional misconduct, he/she may visit the office of the Bar Association located at Inga Lodge, Pinfold Street, Bridgetown to speak with the Secretary of the Disciplinary Committee, who under the Act, is the Registrar or any person deputed by him.

75 The procedure The client must collect 2 forms:
Form of application against an attorney- at-law A form of affidavit by the applicant. The first form is filled out and signed by the APPLICANT and the second form is to be signed by a JUSTICE OF THE PEACE stating the matters of fact on which he relies in support of his application.

76 Cont’d The complaint once lodged will then be reviewed by the Committee in a formal hearing to determine if a case of professional misconduct is made out against the attorney-at-law. Where such a case exist the Committee must within 21 days forward to the Chief Justice a report of its findings and any recommendation for appropriate sanctions to be instituted against the attorney-at-law.

77 Cont’d The Committee may make rules regulating the presentation, hearing and determination of applications. Additionally, for the purposes of any application made under the Act, the Committee shall have the powers of the High Court to summon witnesses, call for the production of books and documents and examine witnesses and parties concerned on oath.

78 The remedies On the hearing of an application the Committee may, as it thinks just, in its report make any recommendation as to the Removal from the Roll of the name of the attorney-at-law to whom the application relates; Suspending of the attorney-at-law to whom the application relates from practice on such conditions as it may determine;

79 Remedies Cont’d Imposing on the attorney-at-law to whom the application relates, such fines as it thinks proper; Subjecting the attorney-at-law to whom the application relates, to a reprimand; The payment by any party of costs or such sum as it may consider a reasonable contribution towards costs.

80 limitations It is to be noted that the professional misconduct of an attorney complained of to the Committee is limited in that it is not authorized to hear matters of misconduct against the Attorney-General or the Director of Public Prosecution.

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