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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. Jan Wong v. The Globe and Mail Inc., 2014 ONSC 6372

[11] Following the book’s publication in May 2012, the Globe and Mail immediately applied to the Arbitrator for a determination that twenty-three phrases in the book breached the MOA’s confidentiality provision. The Globe and Mail sought an order that the applicant forfeit and repay to it the second lump sum, representing two years’ salary, paid to her under the MOA.

[12] The Arbitrator held a hearing on The Globe and Mail’s application on May 30, 2013. The Arbitrator released her decision on July 3, 2013. In her decision, the Arbitrator concluded that at least four of the twenty-three impugned phrases in the book did breach the MOA because they disclosed the fact that a payment had been made by The Globe and Mail to the applicant. Those four phrases were:

• … I can’t disclose the amount of money I received
• I’d just been paid a pile of money to go away …
• Two weeks later a big fat check landed in my account.
• Even with a vastly swollen bank account …

As a result, the Arbitrator concluded that the applicant had disclosed a term of the settlement and thus had breached the confidentiality provision.

2. Hodge v. Neinstein, 2014 ONSC 6366

[81] Non-compliance with the Act or the Regulations does not make the contingency fee agreement void or unenforceable. A contingency fee agreement can only be declared void, or be cancelled and disregarded, where the court determines that the agreement is either unfair or unreasonable. There is no strict liability for a breach of the Solicitors Act. If there is a breach of the Act, the lawyer may have to refund all, some, or none of the illegal or unreasonable charges.

[82] It is against this statutory background that the alleged reprehensiveness of the Respondents’ alleged unauthorized double-dipping needs to be measured, and in this regard, it can be immediately be noted that double-dipping, as such, is not prohibited. What is prohibited is unauthorized double-dipping, and the prohibition of it is hardly absolute because, practically speaking, the case law accepts that it is possible to act without permission and to beg forgiveness later by showing that it was appropriate to double-dip because of the value of the services provided by the lawyer on a case-by-case basis.

3. Dunsmuir v. New Brunswick, 2008 SCC 9

[1] This appeal calls on the Court to consider, once again, the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals. The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision makers or judicial review judges. The time has arrived for a reassessment of the question.

The most-consulted French-language decision was Laval (Ville de) c. Pothier, 2014 QCCM 167

[40] La lecture que fait le procureur du défendeur de l’arrêt de la Cour suprême dans l’affaire précitée de «R. c. W. (D.)» m’apparait inexacte : La Cour ne mentionne pas que l’analyse du témoignage du défendeur doit se faire en vase clos ni que la démarche préconisée en est une en trois étapes successives.

[41] La jurisprudence récente, dont un arrêt de la Cour suprême elle-même, confirme que l’analyse de la version du défendeur doit se faire dans le contexte de l’ensemble de la preuve faite et que la démarche énoncée dans W. (D.) en est une d’alternatives qui se présentent au juge des faits et non une analyse séquentielle.

* 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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