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. Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Appeals from commercial arbitration decisions are narrowly circumscribed under the Arbitration Act. Under s. 31(1), they are limited to questions of law, and leave to appeal is required if the parties do not consent to the appeal. Section 31(2)(a) sets out the requirements for leave at issue in the present case: the court may grant leave if it determines that the result is important to the parties and the determination of the point of law may prevent a miscarriage of justice.

In the case at bar, the Court of Appeal erred in finding that the construction of the finder’s fee agreement constituted a question of law. Such an exercise raises a question of mixed fact and law, and therefore, the Court of Appeal erred in granting leave to appeal.

The historical approach according to which determining the legal rights and obligations of the parties under a written contract was considered a question of law should be abandoned. Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix of the contract.

2. R. v. Michael, 2014 ONCJ 360

[75] Exposing those who are poor such as Mr. Michael to perpetual, unsatisfied, sentencing obligations also deprives them of the ability to repay their debt to society. Because they do not have the means to repay, they lose the opportunity to be restored. I do accept that many offenders lack the sophistication to delve into deep questions of legal philosophy and moral responsibility, and that is probably true of Mr. Michael. Still, the notion of just punishment has long carried the promise that after the eye is given for the eye, the offender has discharged their debt and reconciliation can begin. The whole idea of restorative justice legislatively endorsed in the Criminal Code and recognized to be of cultural significance to aboriginal offenders such as Mr. Michael, depends on reconciliation. Indeed, some legal philosophers have justified punishment on the basis that it is a kindness to offenders to punish them since it permits them to heal. Whether this is persuasive or not, the flip side is. It is a cruelty in some measure to tell an offender that they must discharge an impossible sentence before their debt is expunged. Reducing all of this to a less ethereal plane, the point is that so long as Mr. Michael fails to pay the victim surcharge he remains indebted and criminalised. He has not paid the price for his crime and remains unrequited because he is poor. It is worth noting in my view that when it comes to the sentence of discretionary fines the law avoids this consequence by prohibiting fines from being used to punish offenders who cannot pay. In the case of victim surcharges, imposing unpayable monetary penalties is a legislatively accepted consequence. If it proves to be true that Mr. Michael never gets out from under the debt the impugned legislative scheme seeks to impose, it is a consequence that would befall him. He will remain indebted to society with all of the stigma and stress that imposes.

[76] As indicated, Mr. Konyer identified still other collateral consequences that would occur from overlong or perpetual poverty-caused non-payment by Mr. Michael, even if he is never actually deprived of the money. The Crown urges that many of these concerns are unrealistic in his case. The Crown urges that so long as Mr. Michael is unable to pay the victim surcharge, for example, it is unrealistic to imagine him undertaking licenced activities, and so he will not be affected by the collection strategy available under Criminal Code section 734.5 of refusing to give or renew licences and permits to him until a victim surcharge debt is discharged. The Crown also points out that it will not be victim surcharge that impairs his credit rating. I agree with these base observations, and as I pointed out during argument, the same point can be made in the case of a record suspension. The application for a record suspension costs $631. If Mr. Michael can pay that sum he can pay the victim surcharge.

3. the Queen v. Pro Bono Law Ontario, 2014 HRTO 1092

[3] In his Application the applicant alleges that he was denied services by the respondent because he is a person with a disability. The applicant alleges that he is a person with schizophrenia and sought legal assistance from the respondent, a charitable institution which provides legal services to persons in financial need.

[4] The applicant sought the services of the respondent to launch a civil suit for wages allegedly owed to him for his reign as Her Majesty the Queen. The applicant has apparently changed his legal name to Her Majesty (first name) the Queen (last name). Although he identified himself to the Tribunal by his previous legal name, he has submitted documentation to the Tribunal that appears to confirm his change of legal name, including a document of name change issued under the Vital Statistics Act, dated March 20, 2014. In the circumstances of this case, where the applicant has self-identified as an individual with a psychiatric disability, I see no need to identify the applicant by his previous legal name. The proposed defendant was Stephen Harper.

[5] The applicant made an application for legal assistance from the respondent. He submitted an application in which he provided information necessary for the respondent to assess his application. Amongst other criteria an applicant’s financial means are assessed. The respondent also makes an assessment of the likelihood of success of the proposed legal proceeding. In his application the applicant articulated his civil claim as set out above.

The most-consulted French-language decision was Hébert c. R., 2014 QCCA 1441

[18] Je n’entends pas ménager mes mots. On remarquera à nouveau le ton méprisant et le fait que le juge omet systématiquement d’utiliser l’appellation professionnelle de « Maître » lorsqu’il s’adresse à la procureure de l’accusé. S’ajoute à l’attitude inacceptable du juge son refus répété, voire obstiné, de traiter ou même d’envisager l’objection de l’appelant relative à une preuve préjudiciable non divulguée, dont le contexte est que, pendant l’interrogatoire par la Couronne, le témoin incarcéré Dany Roy rapporte qu’un gardien de prison lui a expliqué que sa vie était en danger car les Hells Angels auraient placé un contrat sur sa tête en raison de sa collaboration au procès de l’appelant. La défense s’oppose immédiatement, ce qui se justifie, au motif que la poursuivante ne lui a pas divulgué cette information.

[19] Comme nous l’avons vu, le juge, réaffirmant en quelque sorte sa propre infaillibilité, rejette l’objection à trois reprises. Il permet au témoin de continuer, avant d’interrompre éventuellement l’interrogatoire, après un échange avec les procureurs hors la présence du jury. Il émettra une directive correctrice indiquant au jury d’ignorer cet aspect du témoignage quant à la véracité de son contenu, ce qui en dit long sur la légitimité de ses reproches initiaux à la procureure de l’appelant.

* 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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