Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

  1. Bank of Montreal v Faibish 2014 ONSC 2178

    [2] Let me express my profound frustration as a judge who has tried to encourage both counsel and fellow judges to make greater use of modern information technologies in our Court. Those who make up the public court system – be they the judges adjudicating the cases or the counsel pleading them – provide a service to members of the public who face legal problems. While that service possesses some distinctive attributes – constitutional status, part of the foundation of a democratic system of government, etc. – it still remains a service. As a service it must be alive to the way in which the community it serves handles and communicates information.

    [3] Our community has undergone radical changes in the way it handles and communicates information. Take music, as an example. As a teenager I treasured my collection of 45 rpms; today, my grandchildren would not know what they were looking at if shown one of the 45 snap-in inserts. A decade later 8-Tracks and cassettes were the rage; they have gone the way of the Dodo bird. Then CDs began their dominance, but are now rapidly fading under the onslaught of MP3s and other digital storage mechanisms.

    [4] Providers of music to the public have had to adapt to changes in technology in order to continue to provide their particular service. Why should courts and lawyers be any different? Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?

    [5] Our Court must choose: are we a Court of the Past or a Court of the Future? I vote for a Court of the Future, and therefore I will not accept counsel’s suggestion that the six-week trial for this complex commercial litigation on the Toronto Region Commercial List proceed using both paper and digital information. I know there are judges available who are chomping at the bit to conduct more e-trials. Paper must vanish from this Court and, frankly, the judiciary cannot let the legal profession or our court service provider hold us back. Accordingly, I order that the six-week trial of the Loretta and Brome Actions be conducted as electronic trials. More than enough time exists before the October 6 start date to organize the trial materials electronically. I order counsel to provide me with a formal e-trial plan at the June 26, 2014 case conference.

  2. R. v. Summers 2014 SCC 26

    [1] When an accused person is not granted bail, and must be remanded in jail awaiting trial, the Criminal Code, R.S.C. 1985, c. C-46, allows time served to be credited towards a resulting sentence of imprisonment. A day in jail should count as a day in jail.

    [2] However, crediting a single day for every day spent in a remand centre is often insufficient to account for the full impact of that detention, both quantitatively and qualitatively. Time in a remand centre does not count for the purposes of eligibility for parole, earned remission or statutory release, and this can result in a longer term of actual incarceration for offenders who were denied bail. Moreover, conditions in remand centres tend to be particularly harsh; they are often overcrowded and dangerous, and do not provide rehabilitative programs.

    [3] As a result, for many years courts frequently granted “enhanced” credit: 2 days for each day spent in pre-sentence custody. This practice was endorsed by this Court in R. v. Wust, 2000 SCC 18 (CanLII), 2000 SCC 18, [2000] 1 S.C.R. 455. When conditions were exceptionally harsh, judges granted credit at a rate of 3 to 1 or more.

    [4] The Truth in Sentencing Act, S.C. 2009, c. 29 (TISA), passed in 2009, amended the Criminal Code to cap pre-sentence credit at a maximum of 1.5 days for every day in custody. The purpose was to remove any incentive for an accused to drag out time in remand custody, and to provide transparency so that the public would know what the fit sentence was, how much credit had been given, and why.

    [5] In this case, the Court is called upon to interpret these amendments. There is no dispute that Parliament imposed a cap on enhanced credit at a rate of 1.5 to 1. However, there are conflicting lower court decisions on when “enhanced” credit at a rate higher than 1 to 1 is available.

  3. Livent Inc v Deloitte & Touche LLP, 2014 ONSC 2176

    [1] In 1968, Mel Brooks wrote and directed the sometimes outrageous film, The Producers. In this film, which Brooks reprised in a 2001 Broadway musical of the same name, the protagonist, Max Bialystock, created a scheme through which he was able to convince a coterie of unsuspecting individuals to invest in his deliberately ill-fated Broadway ventures. He did so on the strength of his self-styled reputation as the “King of Broadway”. He enlisted the support of his star-struck accountant, the nebbish Leo Blum, whose function was to, among other things, doctor the books of account of the productions. Regrettably for Bialystock and Blum, the play which they first produced—and which they hoped would sputter out on or shortly after opening night—became a resounding success. Their scheme failed miserably, resulting in their prosecution, conviction for fraud and ultimate incarceration.

    [2] In 1989, Garth Drabinsky and his long-time trusted colleague and soon-to-be co-conspirator and fellow inmate, Myron Gottlieb, left Cineplex Odeon Corporation after mounting an unsuccessful takeover bid. Their stated intention was to create a new vertically-integrated venture, the Live Entertainment Corporation of Canada (“LECC”), with the live entertainment assets of Cineplex that they obtained in their much-heralded, though unceremonious, leave-taking. I am not persuaded on the evidence adduced during the 68-day trial before me—the latest installment of this seemingly endless saga[1]—that Messrs. Drabinsky and Gottlieb set out to defraud the world, by which term I mean to include those who invested through equity or debt in their enterprises. In retrospect, however, it would seem that the consequences of their actions were almost preordained. Put otherwise, much like the intended actions of Messrs. Bialystock and Blum, Drabinsky and Gottlieb ended up separating countless individuals and corporations, of varying degrees of sophistication, from significant sums, and later found themselves being charged, convicted of fraud and ultimately incarcerated.[2]

The most-consulted French-language decision was Magasins Best Buy ltée c. Québec (Procureur général) 2014 QCCS 1427

[1] Ce dossier s’inscrit dans la recherche incessante d’un juste équilibre entre la sauvegarde et la mise en valeur de la langue française comme langue de la majorité au Québec et la liberté d’usage au Québec des autres langues, dont la langue usuelle de la majorité au Canada et en Amérique du Nord.

[2] C’est ce besoin d’asseoir la capacité du français de résister à la pression continentale de l’anglais qui a favorisé l’élaboration des premières lois linguistiques au Québec et qui a présidé à la gestation de la politique linguistique du Québec qui culminera dans l’adoption en 1977 de la Loi 101, la Charte de la langue française, qui est au cœur du présent dossier.

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.


  1. Patrick Cormier

    I can’t help rooting for Justice Brown. Plain language and straight to the point (decision #1 above). Well said!!