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. Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59

[1] The issue in this case is whether court hearing fees imposed by the Province of British Columbia that deny some people access to the courts are constitutional. The trial judge, upheld on appeal, held that the legislation imposing the fees was unconstitutional. I agree.

[2] In my view, the fees at issue here violate s. 96 of the Constitution Act, 1867. Although the province can establish hearing fees under its power to administer justice under s. 92(14) of the Constitution Act, 1867, the exercise of that power must also comply with s. 96 of the Constitution Act, 1867, which constitutionally protects the core jurisdiction of the superior courts. For the reasons discussed below, the fees impermissibly infringe on that jurisdiction by, in effect, denying some people access to the courts.

2. Stewart v. Hosack, 2014 ONSC 5693

[70] A lawyer or law firm cannot be disqualified unless there is a risk of prejudice to the client, although in some cases the client benefits from a presumption of risk of prejudice. A fair conflicts rule must balance the conflicting values of preserving the high repute of the legal profession and the administration of justice against the values of allowing the client’s choice of counsel and permitting reasonable mobility in the legal profession. See: Hames v. Greenberg, 2013 ONSC 4410 (CanLII), 230 A.C.W.S. (3d) 588.

[71] A lawyer cannot act in a matter where he may use confidential information obtained from a former or current client to the detriment of that client. A two-part test is applied to determine whether the new matter will place the lawyer in a conflict of interest: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of that client? If the lawyer’s new retainer is sufficiently related to the matters on which he or she worked for the former client, a rebuttable presumption arises that the lawyer possesses confidential information that raises a risk of prejudice. See: Canadian National Railway Co. v. McKercher LLP.

3. R. v. Conception, 2014 SCC 60

[1] When an accused person has been found unfit to stand trial and the other statutory requirements have been met, the court may make a disposition order directing that treatment be carried out for a specified period not exceeding 60 days and on such conditions as the judge considers appropriate for the purpose of making the accused fit to stand trial. The disposition order may not be made, however, without the consent of either the person in charge of the hospital where the accused is to be treated or the person to whom responsibility for the treatment of the accused has been assigned. (For ease of reference, we will refer to this as the hospital’s consent.)

[2] The main issue on appeal is whether, as the appellant contends, the court may make a disposition order directing that treatment begin immediately even though the hospital or treating physician does not consent to that disposition. In our view, the answer to this question is “no” in all but the rare case in which a delay in treatment would breach the accused’s rights under the Canadian Charter of Rights and Freedoms, and an order for immediate treatment is an appropriate and just remedy for that breach.

The most-consulted French-language decision was 159191 Canada inc. (Discount Location d’autos et camions) c. Waddell, 2013 QCCQ 3560

[23] Comme mentionné précédemment, la défense s’articule autour du caractère illisible de la clause dont veut se servir la demanderesse. Cette notion est véhiculée par l’article 1436 du Code civil du Québec [1]

« 1436. Dans un contrat de consommation ou d’adhésion, la clause illisible ou incompréhensible pour une personne raisonnable est nulle si le consommateur ou la partie qui y adhère en souffre préjudice, à moins que l’autre partie ne prouve que des explications adéquates sur la nature et l’étendue de la clause ont été données au consommateur ou à l’adhérent. »

[24] Comme nous le verrons, les principes applicables en l’espèce débordent le cadre de ce seul article.

* 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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