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. Cali’s Plumbing Ltd. v. National Dispatch Services Ltd. et al., 2015 ONSC 1918

[5] More significantly, the parties have been denied speedy, efficient, affordable, proportionate civil justice because all parts of the “system” have yet to acclimatize to its new needs. This is not a question of simply criticizing counsel or enforcing minor orders out of an over-sensitive sense of judgitis. The Supreme Court of Canada has called for a “culture shift” in civil justice in Canada. See: Hryniak v. Mauldin, 2014 SCC 7 (CanLII). Implementing change is never easy and there will always be bumps in the road. Civil Practice Court has been up and running for almost six months now. In that time, some lessons have been learned. Unfortunately, the facts of this case bring together two of the problems that are seen very frequently in Civil Practice Court and must be dealt with to make the system work as intended in Toronto.

2. Westerhof v. Gee Estate, 2015 ONCA 206

[6] The Westerhof appeal raises the question of whether rule 53.03 applies only to experts described in rule 4.1.01 and Form 53 – experts “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding” (referred to in these reasons as “litigation experts”) – or whether it applies more broadly to all witnesses with special expertise who give opinion evidence. This broader group of witnesses would include, for example, treating physicians, who form opinions based on their participation in the underlying events (referred to in these reasons as “participant experts”) rather than because they were engaged by a party to the litigation to form an opinion. It would also include experts retained by a non-party to the litigation (for example, statutory accident benefits (“SABS”) insurers), who form opinions based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation (referred to in these reasons as “non-party experts”).

3. King David Inc. v. Andrin Investment Ltd., 2015 ONSC 1935

[1] The plaintiff in this case brought a motion for partial summary judgment alleging breach of the Copyright Act, R.S.C. 1985, c. C-42. It rapidly became clear during argument that the plaintiff was under the misapprehension that there was a legal requirement for any license to use copyright material to be in writing whereas the defendant claimed, based on disputed evidence, to have had the benefit of a license to use the material arising from oral or implied consent. Unfortunately for the plaintiff, the writing requirement relied upon applies only to conveyances of an interest in the copyright itself (s. 13(4)) and not merely to consent to the use of copyrighted material for which no writing requirement is specified (s. 27). This was not a sudden flash of insight offered from the bench to the surprise of counsel who had never considered the matter in that light before. This was indeed a central theme – if not THE central theme – of the respondent’s factum and arises from a plain and straightforward reading of the statute. All that became clear to counsel in argument was that the respondent’s argument had found its mark and I was greatly persuaded by it.

The most-consulted French-language decision was Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14

[1] Il y a quinze ans, notre Cour a décidé que le Parlement, agissant dans l’exercice de son pouvoir de légiférer en matière de droit criminel, avait la compétence constitutionnelle voulue pour établir un régime national de contrôle des armes à feu. Cette décision du Parlement participait d’un choix de politique générale controversé qui a été contesté pour des motifs constitutionnels. Il y a trois ans, le Parlement est revenu en partie sur ce choix de politique générale antérieur : il a abrogé la loi qui avait constitué le registre des armes d’épaule faisant partie du régime de contrôle des armes à feu et décrété la destruction des données que le registre contenait. Il s’agissait également d’un choix de politique générale controversé qui est aujourd’hui contesté, encore une fois pour des motifs constitutionnels.

* 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.