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. R. v. Bal & Sidhu, 2014 ONSC 3063

[36] Guided by the principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Code and specifically recognizing the fundamental principle of proportionality set out in s. 718.1, the sentence to be imposed must be in keeping with the gravity of the offence and the degree of the offender’s responsibility.

[37] Denunciation of the offenders’ conduct and general and specific deterrence represent paramount considerations on this sentencing.

[38] In R. v. C.A.M. 1996 CanLII 230 (SCC), (1996), 105 C.C.C. (3d) 327, Lamer C.J. commented on this principle and stated, at p. 364, that it is “a sentencing judge’s overriding duty to fashion a ‘just and appropriate’ punishment which is proportional to the overall culpability of the offender.”

[39] The principle of retribution in the context of sentencing was also considered in this case and the court indicated that the principle of retribution bears little relation to vengeance but rather represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm by the offender and the normative character of the offender’s conduct: C.A.M., at p. 368.

2. Salsman v. London Sales Arena Corp., 2014 HRTO 775

[1] These four Applications were filed under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicants in Tribunal files 2012-12420-I, Judith Salsman (“Ms. Salsman”); 2012-12421-I, Falicity Chartrand (“Ms. Chartrand”); and 2012-12422-I, Daniella Freeman (“Ms. Freeman”) allege discrimination with respect to facilities on the basis of sex, specifically gender identity, as transgendered persons. The applicant in 2012-12423-I, Karen Clarke-McIlwain (“Ms. Clarke-McIlwain”) alleges discrimination with respect to facilities on the basis of sex, sexual orientation and association with a person identified by those grounds, as well as reprisal. Ms. Clarke-McIlwain is not a transgendered person and her claim is grounded in discrimination by association with the other applicants. She did not pursue her claim with respect to discrimination on the basis of sex.

3. Piljak Estate v. Abraham, 2014 ONSC 2893

[25] The moving defendants have provided me with an article from the Canadian Medical Association Journal dealing with rights to access excised human tissue and in so doing make conclusions about who “owns” the tissue.[7] It notes that human tissue is excised either for diagnostic purposes/medical care or for research purposes. Diagnostic tissue, such as in the case before me, is tissue obtained in a procedure for patient care and that in accordance with regulations under the Public Hospitals Act[8] must be sent to a laboratory or pathology department for examination and diagnosis. The sampled and processed tissue is retained as archived diagnostic tissue for a minimum of 20 years in the clinical archives of the pathology department (although excised tissue not specifically sampled is typically discarded within weeks).[9]

[26] The authors state that it “is unquestionably true that patients own their tissue before it is excised”, and while it has never been squarely dealt with by a Canadian court, they conclude that diagnostic tissue, once excised becomes a “component of the medical record” (as required by regulation under the Public Hospitals Act)[10]. As such, “both possession and ownership are transferred to the institution” and “by virtue of it being part of the medical record, diagnostic tissue is therefore owned by the institution or hospital.” At best a patient is entitled to “reasonable access.” The authors note that their conclusion has been supported by American jurisprudence. While this is not binding on me I find the reasoning compellable and I adopt its conclusions.

[27] Ms. Piljak’s excised tissue is therefore owned by Sunnybrook Hospital, whose pathology department performed the diagnostic tests and in whose archives the tissue is kept. As the excised tissue is subject to rights of ownership, and since the tissue is clearly a moveable, I conclude that it is personal property to which inspection and testing under rule 32.01 may apply.

The most-consulted French-language decision was Financière Transcapitale inc. c. Fiducie succession Jean-Marc Allaire, 2012 QCCS 5733

[33] Jusqu’au 30 mars 2012 les seuls moyens de défense qui ont été soulevés verbalement ou par écrit par les défendeurs se résumaient à l’argument que la garantie donnée à la demanderesse s’était éteinte automatiquement à l’arrivée du terme de un an constaté à l’acte de prêt hypothécaire du 2 mars 2010 signé devant le notaire Gilbert Lord, c’est-à-dire le 2 mars 2011, et que la garantie donnée par la fiducie ne pouvait pas dépasser un montant de 300 000 $ en capital, intérêts et frais, vu le contenu de la résolution de la Fiducie du 17 février 2010 dont un des considérants se lit comme suit:

CONSIDÉRANT que Marc Allaire a présenté aux fiduciaires les principaux points du contrat le concernant avec La Financière Transcapitale dont la durée est d’une année et dont le montant maximum est de 300 000 $.

(soulignement ajouté)

[34] En ce qui concerne le premier moyen, soit celui à l’effet que la garantie consentie à la demanderesse s’est éteinte automatiquement au bout du terme d’un an constaté à l’acte de prêt, il n’est pas besoin d’en discuter bien longtemps pour écarter ce moyen simpliste et fallacieux, qui, à la simple lecture de l’acte hypothécaire ne tient pas la route.

* 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.

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