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. Tsilhqot’in Nation v. British Columbia, 2014 SCC 44

[1] What is the test for Aboriginal title to land? If title is established, what rights does it confer? Does the British Columbia Forest Act, R.S.B.C. 1996, c. 157, apply to land covered by Aboriginal title? What are the constitutional constraints on provincial regulation of land under Aboriginal title? Finally, how are broader public interests to be reconciled with the rights conferred by Aboriginal title? These are among the important questions raised by this appeal.

[2] These reasons conclude:

  • Aboriginal title flows from occupation in the sense of regular and exclusive use of land.
  • In this case, Aboriginal title is established over the area designated by the trial judge.
  • Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it.
  • Where title is asserted, but has not yet been established, s. 35 of the Constitution Act, 1982 requires the Crown to consult with the group asserting title and, if appropriate, accommodate its interests.
  • Once Aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the Aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group; for purposes of determining the validity of provincial legislative incursions on lands held under Aboriginal title, this framework displaces the doctrine of interjurisdictional immunity.
  • In this case, the Province’s land use planning and forestry authorizations were inconsistent with its duties owed to the Tsilhqot’in people.

2. Bailey v. Barbour, 2014 ONSC 3698

[50] It was argued by Mr. Fenn that Mr. Barbour must have known that Mr. Stewart was biased, as he was in Court throughout the trial, and accordingly must have known of the issue of bias. I am not satisfied that this is true, as there is some evidence suggesting that Mr. Barbour was not kept fully engaged in this litigation in the way one might expect. I refer to the fact that Mr. Stewart testified on the voir dire that he had not rendered a single account to Mr. Barbour, whether directly or through Mr. Streisfield, for the trial in question. This information leads me to infer that there are likely other aspects of Mr. Stewart’s involvement about which Mr. Barbour was not kept fully apprised. There is no indication, for example, that Mr. Barbour was included in the offending emails that passed between Mr. Stewart and Mr. Streisfield. In his affidavit, Mr. Streisfield explains why he disagrees with the Court’s finding that Mr. Stewart was biased. It stands to reason that this issue was never canvassed with Mr. Barbour. Based on this additional evidence, I believe that it would be erroneous to infer that Mr. Barbour was advised of the problems with Mr. Stewart’s testimony, but instructed Mr. Streisfield to proceed nonetheless. Given these facts, it is unlikely that Mr. Barbour was fully informed of any possible risks and consequences of Mr. Stewart’s continuing involvement. Accordingly, Mr. Barbour should not be responsible for the costs thrown away by trial time spent on Mr. Stewart. For that reason, I decline to order that costs be payable on a joint and several basis.

[51] Counsel for Mrs. Bailey has included a breakdown of the percentage of trial time that was wasted in the proceedings before both Justice McIsaac and myself. He estimated that trial time taken up by Mr. Stewart in the proceeding before Justice McIsaac was approximately 3 days out of 19, and 4.5 to 5 days out of 13 days in the second trial. The time spent at trial is, of course, only a portion of the work involved. It is very difficult to estimate with any exactness the proportion of total costs that were related to Mr. Stewart’s involvement. Given the pivotal role that he played in Mr. Barbour’s case, the time spent on his testimony was significant, as can be seen by the amount of trial time expended. Estimating very conservatively, I place that figure as being equivalent to 20% of the total costs incurred by Mrs. Bailey, or 20% of her costs award of $490,000.

3. United Food and Commercial Workers, Local 503 v. Wal‑Mart Canada Corp., 2014 SCC 45

[1] On April 29, 2005, Wal‑Mart Canada Corp. (“Wal‑Mart”) closed its store in Jonquière in the Saguenay–Lac‑Saint‑Jean region. The closure, which had been announced the day an arbitrator was appointed to resolve an impasse in negotiations for a first collective agreement with the union certified for that establishment, led to a series of proceedings based on various sections of the Labour Code, CQLR, c. C‑27 (“Code”), and the Act respecting labour standards, CQLR, c. N‑1.1 (“A.L.S.”). This appeal, the final chapter in this long legal battle, concerns the interpretation of the first paragraph of s. 59 of the Code, which reads as follows:From the filing of a petition for certification and until the right to lock out or to strike is exercised or an arbitration award is handed down, no employer may change the conditions of employment of his employees without the written consent of each petitioning association and, where such is the case, certified association.[2] On being asked to determine whether that provision applied in the context of the closure of the Jonquière establishment, arbitrator Jean‑Guy Ménard concluded that the resiliation of the contracts of employment of all the employees of that establishment constituted a prohibited unilateral change. His award was affirmed by the Superior Court, but overturned by the Court of Appeal. The judges of the Court of Appeal, although divided on how broadly s. 59 should be construed, agreed that the section did not apply in the circumstances of the case before them.

[3] In my opinion, the Court of Appeal erred in intervening as it did. Arbitrator Ménard’s analysis and the conclusions he drew are not unreasonable. On the contrary, it seems to me that the prohibition provided for in s. 59 of the Code is indeed applicable to the facts of this case. I would accordingly allow the appeal, dismiss the application for judicial review and declare the arbitration award, and its disposition, to be valid.

The most-consulted French-language decision was Nation Tsilhqot’in c. Colombie‑Britannique, 2014 CSC 44

[1] Quel critère permet d’établir l’existence d’un titre ancestral sur un territoire? Si l’existence d’un titre est établie, quels droits confère‑t‑il? La Forest Act, R.S.B.C. 1996, ch. 157, de la Colombie‑Britannique s’applique‑t‑elle aux terres visées par un titre ancestral? Quelles contraintes constitutionnelles sont imposées à la réglementation, par la province, des terres visées par un titre ancestral? Enfin, comment concilier l’intérêt public général et les droits conférés par un titre ancestral? Voilà quelques questions importantes soulevées dans le présent pourvoi.

[2] Voici les conclusions tirées dans les présents motifs.

  • Le titre ancestral découle de l’occupation, c’est‑à‑dire d’une utilisation régulière et exclusive des terres.
  • En l’espèce, l’existence d’un titre ancestral est établie à l’égard du territoire désigné par le juge de première instance.
  • Le titre ancestral confère le droit d’utiliser et de contrôler le territoire et de tirer les avantages qui en découlent.
  • Lorsque le titre est revendiqué, mais que son existence n’a pas encore été établie, l’art. 35 de la Loi constitutionnelle de 1982 oblige la Couronne à consulter le groupe qui revendique ce titre et, s’il y a lieu, à trouver des accommodements à ses intérêts.
  • Une fois établie l’existence du titre ancestral, l’art. 35 de la Loi constitutionnelle de 1982 permet d’y porter atteinte seulement si le groupe autochtone y consent ou si l’atteinte est justifiée par un objectif public réel et impérieux et si elle est compatible avec l’obligation fiduciaire de la Couronne envers le groupe autochtone; lorsqu’il s’agit de déterminer la validité d’une atteinte causée par l’application des lois provinciales aux terres visées par un titre ancestral, ce cadre d’analyse écarte la doctrine de l’exclusivité des compétences.
  • En l’espèce, le projet d’aménagement du territoire de la province et les autorisations d’exploitation forestière accordées par elle étaient incompatibles avec les obligations qu’elle avait envers le peuple Tsilhqot’in.

* 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. RE: ley v. Barbour, 2014 ONSC 3698 – “time wasted”

    Far worse than the problem of “time wasted” when bogus/biased medico-legal “experts” are caught is the problem of wrongful decisions based on their bogus/biased “experts” in all the many cases when they are not caught (see example below).

    * “Dr. Marton conceded he does not have expertise in treating and assessing chronic pain.” (Thevaranjan and Personal Insurance )

    *Although Dr. Grant has a resume which describes him as a specialist in sports and orthopaedic medicine, Mr. Oppedisano’s counsel challenged Dr. Grant’s credentials at the hearing. As a consequence, Zurich’s counsel telephoned Dr. Grant during a recess. Dr. Grant confirmed that he is not an orthopaedic specialist and has no specialist certification. A certificate of status of registration from the College of Physicians and Surgeons lists Dr. Grant as having no specialty qualifications. In the context of individual medical assessment, this can be misleading. Dr. Grant would have self described himself more properly as a general practitioner with an interest and experience in sports medicine. (Oppedisano and Zurich Insurance)