Under the “Oh!”: the Rogue Santa Edition

Hark!  It is the bleak midwinter. I am a confirmed grinch. My heart is full of unwashed socks. Yet I also enjoy silent nights, peace on earth, and rest for all merry and gentle people. grinchRather than enter into a soul-baring post about my conflicted Christian upbringing, I will instead offer a few Santa sightings of the jolly- and not-so-jolly nature in some Canadian legal decisions.  Stay with me….

Prior to sainthood, Nicholas was known to the locals as the reindeer whisperer.  Historical documents confirm the third century Turk was awarded sainthood in part due to his uncanny knowledge of when people had been good or bad, and in part for nifty chimney levitation.  The date of his death, December 6, is celebrated by some as a lucky day to make large purchases or to get married.  For me, it is a date of horrible deaths.

St. Nick and lucky days to make large purchases?  Do I see an opportunity to capitalize on something?  st nicFrom History.com:

Gift-giving, mainly centered around children, has been an important part of the Christmas celebration since the holiday’s rejuvenation in the early 19th century. Stores began to advertise Christmas shopping in 1820, and by the 1840s, newspapers were creating separate sections for holiday advertisements, which often featured images of the newly-popular Santa Claus. In 1841, thousands of children visited a Philadelphia shop to see a life-size Santa Claus model. It was only a matter of time before stores began to attract children, and their parents, with the lure of a peek at a “live” Santa Claus. In the early 1890s, the Salvation Army needed money to pay for the free Christmas meals they provided to needy families. They began dressing up unemployed men in Santa Claus suits and sending them into the streets of New York to solicit donations. Those familiar Salvation Army Santas have been ringing bells on the street corners of American cities ever since.

Is it just me?

You may already be familiar with Coca-Cola’s Santa affiliation.  This is, frankly, jolly beyond repair.  With my emphasis, in the early 1930s,

Coca-Cola commissioned Michigan-born illustrator Haddon Sundblom to develop advertising images using Santa Claus — showing Santa himself, not a man dressed as Santa.

coke santa

[Rereads sentence.] What? My mind is blown by the idea of an illustrator being commissioned to convey authenticity in advertising.  Seriously, though, how can we possibly know the difference between not-Santa men in Santa-suits, and Santa himself, wearing his usual clothing?

Coke implies it has put its finger on some type of intrinsic Santa-ness.  Let’s think carefully about this, if that’s even possible.  What this means to me is that the suit does not make the man.  If, on a midnight clear, naked Santa himself shows up, what is the “tell” that the fella is Santa himself and not just some guy not dressed up in a Santa suit? What exactly is inherently Santa?  A coke in his right hand and the heavy hammer of judgment in the left?  Some type of aura?  If he shaves or wears a bunny suit, is he still Santa himself?  Or are the red suit and the beard But inherent to Santa?  Just me?

This is serious stuff!  As noted below, knowing when we’re dealing with Santa himself and not some interloper is important.

But what of Santa clauses in caselaw?

One legal principle is that Santa himself is used to evaluate how well personal service has been effected.  You’re typically not allowed to start a case in Court without giving notice to the party you are suing, or “serving” the party, and then confirming to the Court that you’ve done so in an “affidavit of service.”  In Canada, we routinely use the standard of what is called “Santa Service” to measure how effective a plaintiff’s service on the defendant is. “Santa Service” is service as close to instantaneous as possible.  Many a time its been overheard in the law firm:  “Bob, did you effect regular service or Santa Service?”  “Geez, Kyle, I didn’t know this was a Santa Service case!”  “Bob, oh Bob, no Festivus bonus for you!”

In Frasco v. Saturn 121, Inc. et al., 2015 ONSC 1535 (CanLII), plaintiff Fransco claimed that he was the rightful owner of 115 dissolved Ontario corporations.  In what is described by the Court as an “enterprising and imaginative claim,” Fransco relies on “finders=keepers;” because the corporations had not been renewed by their owners, they were abandoned and when he found them, Fransco was the new owner. Cool.

This ground-breaking case has come to exemplify the “miracle of personal service” or Santa Service.  Frasco confirmed that he served the 115 defendants throughout Ontario in just 3 days. The Court is skeptical that this was accomplished without Santa:

While Santa Claus has perfected the art of visiting millions of homes in a single night, Mr. Frasko’s affidavit of service makes no claim to having enlisted such assistance in effecting such a miracle of personal service.

santa-reindeerNotwithstanding Frasko confirmed “that he performed all of the miracles of service that his two affidavits… allege” (direct quote), the Court was not satisfied and dismissed his claim somewhat out of hand.

What’s fabulous?  The Court dismisses the plaintiff for failing to enlist the help of Santa himself, while at the same time differentiating between things that exist and those with only potential existence:

A dissolved corporation is not abandoned and in fact does not even exist. At best it has a potential existence in that it can be revived and in some limited circumstances it can be sued. However, until revived a dissolved corporation is dissolved and it simply is not property that can be found or taken control of.

Perhaps corporations are like Santa himself and can be revived annually by the magical belief of good little girls and boys?  And if these corporations don’t exist, why are there registries of them?

Ok, maybe it is just me:

In addition to his well-known jurisdiction over what is naughty or nice, Santa himself has also set the legal standard for sorting out when someone is undertaking authorized or unauthorized activities, an analysis required when it comes to deciding if insurance coverage is in effect.  See also my related analysis of being on a “Frolic of One’s Own.”

In the sad case of Graham v. London Guarantee & Accident Co. from 1925 (1925 CanLII 378 (ON SC)), Mr. Graham was killed by a street car when he was on the way home from delivering a load of bricks. Graham’s family sought insurance coverage, and the company said that if Graham was at work at the time of the injury, they were out of luck. Here’s the analysis of what are occupational or non-occupational hazards and note the comments on beard versus goatee:

I cannot think of any one who has so consistently and persistently followed a definite occupation, or for so long a time as Santa Claus; and he, as well as any one, may be taken to illustrate the distinction between occupational and non-occupational hazards…. Now if, upon a Christmas Eve, as he heroically strives to bring gladness into every home, a chimney coping should give way, and, falling to the ground, Santa Claus is seriously disabled, or if he should have “a dreadful fall” in ascending or descending an ill-built chimney in some other home, or if, through the crass negligence of a thoughtless parent, the hearth fires are left burning on Christmas Eve, and the picturesque raiment of “the grand old man” is consumed, and his classically magnificent beard sizzled to the size and semblance of a mere goatee (all of which world-circling disasters may Heaven forfend!), these accidental happenings I would solemnly adjudge as hazards of Santa Claus’ occupation, and exempted hazards within the meaning of an accident insurance policy framed as the policy here is. But, on the other hand, if Santa Claus— resting from his labours “in the off season”—although possibly even then dreaming of greater surprises when Christmas comes, should casually wander through Toy Land in Eaton’s or Simpson’s or drive about the city in his Rolls-Royce to do honour to the 999 mothers of “Canada’s Most Beautiful Child,”—the reindeers being also out of commission till winter comes—and, in either case, sustained an accidental injury, this would not be an injury sustained in the course of or arising out of Santa Claus’ occupation: the accident would be attributable to a common non-occupational hazard, and nothing else.

Santa himself must have been particularly topical in 1925.  Rolls Royce introduced the bat-mobile-looking Phantom, phantomfitting vehicle for Santa, no?  Eaton’s Santa Claus parade, ending with a lovely publicity stunt ascendance into Toyland, was a mere 20 year tradition.   But I cannot find a reference for how on earth Santa will “do honour to the 999 mothers of those beautiful children….”  Just as well there aren’t pictures, I think.

toyland

If you want a[n] hilarious account of the trials of a Macy’s Santa’s Elf, I fervently recommend David Sedaris’ Santaland Diaries.

I’ll leave the Santa-related parenting battles or Santa-related WCB claims for another holiday season.  I’ll say nothing more about Santa-related office harassment than to note “It was wholly inappropriate for someone who acted as Santa Claus to be called a sex object and then to comment on his knowledge of ‘various positions'” (1994 CanLII 510).

So we’ll end with the case of Rogue Santa.

In 2004, a hall in Newfoundland was operating a bingo to benefit 7 charities. According to lottery regulations, the hall was limited to an award of $3,000 in total (Community Fundraising Corp. v. Newfoundland and Labrador (Department of Government Services and Lands), 2004 NLTD 236).

Santa himself was expected at the bingo, as he had appeared for a number of years at this event during the holiday season. On December 22, sure enough, he “appeared as expected and was wildly cheered by some 275 happy patrons.” He was there to call the numbers for the opening game, with a jackpot of $75.

You won’t believe what happened next! Santa upped the $75 jackpot to $200. The hall manager claimed as follows:  he

was not prepared to risk the wrath of the patrons by going to the stage and announcing that Santa had exceeded his jurisdiction by raising the jackpot.

The first game went on.

You wouldn’t think Santa, who normally enjoys very broad judgmental discretion, would be so heady with power on this occasion.  Alas:  as the judge describes, Santa was “’emboldened’ by the first game, and increased the jackpot for game 2 from $100 to $200.”

Turns out this was not Santa himself but a guy dressed up as Santa, the Vice President of British Confectionary Ltd, the gaming supplier.  Fun fact!  This company has morphed as per its website”from candy to tickets” into AGI that continues to “provided paper, dabbers and other accessories to halls throughout the province [of NL].”

The bingo awarded $181 more than it was allowed to under licence:  “The excess was largely accounted for by Santa’s generosity.”

Under the B, emBOLDENED. Under the I, losers are not IMPRESSED.

The heavy arm of The Man came down upon the bingo, investigated a complaint from a dauber who was neither holly nor jolly, and the lottery regulator suspended the bingo’s licence for a week, with a related layoff of 17 employees: there were “reasonable and probable grounds…[that] the conduct and management of a lottery is likely to reflect unfavourably upon the integrity of the lotteries program.”

To condone such actions, the regulator argued, would be to encourage patrons to go to bingos where there was Santa largesse, and avoid those that follow the rules. The regulator also quite rightly pointed out that bingos allowing Santa to appear are vulnerable because this had happened before: “Santa Claus — there being only one, according to counsel — is a repeat offender whose activities led to the two-week suspension of the licence of another bingo operator” [emphasis added].

The bingo group appealed.  Their defence?  Santa’s generosity couldn’t possibly reflect badly on the lotteries program, as it only benefited the patrons in attendance. It was, truly, within the Christmas spirit.  And not at all creepy.

bingo

The regulator responded by indicating that if Santa’s generosity was not known when he stepped into the room (not being given away by the red suit and sack of presents), it was certainly apparent after he called the first jackpot.  Why did no one think to caution Kris Kringle that he had to abide by the rules henceforth?

The bingo was successful on appeal.  The $175 excess prize awarded by a rogue Santa was determined not to undermine the “integrity of the lotteries program:”

Further, the isolated and non-recurring nature of the event (as far as the Corporation [regulator] was concerned), the small amount of money involved, the identity of the rogue caller, the lack of any participation by the Corporation, and the absence of prior knowledge on the part of the Corporation, would not persuade the reasonable lottery program participant that the integrity of the lotteries program — it’s overall reputation for honesty and fair dealing -was in the least threatened by the incident in question. In my view the opposite conclusion would be quickly reached. [emphasis added]…

The regulation, as presently worded, is an elephant gun; it is not an appropriate weapon with which to dispatch the Christmas mouse.

The decision’s reasoning about Santa is impeccable, but avoids important questions. I’m not speaking of the potential conflict of interest between the lottery goods supplier appearing as Santa and awarding above-jackpot prizes.  More urgently, the Court is clear that “the particular bingo event rule that was broken by Santa.”  How does this not bring into disrepute the integrity of the naughty/nice gift-giving/coal reward/punishment industrial complex?  Happy holidays.

I’m at darbylegal.ca or barbara@darbylegal.ca

 

 

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