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. Borthwick v Lombard Insurance, 2015 ONSC 4845

[88] At this stage, I do not know what form of business organization was involved in cutting down trees on the Fox Hollow Farm. While Messrs. Douglas and Borthwick may have been involved in a joint venture or have formed a partnership, it is equally possible no new business organization was created by Mr. Borthwick at all.

[89] The insurer has an obligation to defend the proceeding on the insured’s behalf if, at the end of the analysis, there is a possibility the claim, if proven, fits within the coverage afforded by the policy: Nichols, supra at para. 17.
(Check for commentary on CanLII Connects)

2. Warman v Veck, 2015 ONSC 4860

[32] Mr Veck’s publication is not a statement of opinion. It is a statement of facts – the opinions expressed on the basis of those facts are really no more than rhetorical responses to the defamatory facts. One example should suffice to make this point. Mr Veck calls Mr Warman a “radical anti-racist”. In most contexts, being described as “radical” might have negative implications. It is not so clear that it does when it is applied to an activity that right-thinking persons would endorse. So it is not even clear that Mr Veck’s opinion, that Mr Warman is a “radical anti-racist”, is defamatory, when that opinion is stated baldly. In the context of Mr Veck’s article, however, it is clear that “radical” is used to connote behaviour so extreme as to be, itself, anti-social, even if it is in aid of a cause that most would support. That is, while right-thinking persons oppose racism and would not think less of a person for opposing racism, right-thinking persons would hold a different view of a person who would stop at nothing to oppose racism – including dishonest or even criminal conduct. It is the conduct attributed to Mr Warman – fabricating the Cools article – and attributing it to someone else – that is the essence of the defamatory statements about Mr Warman, and not Mr Veck’s opinion that this conduct is “radically anti-racist”.
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3. Godard v. Godard, 2015 ONCA 568

[33] It is possible that nothing short of physical force could have brought S. to the access visits. However, this does not excuse the appellant given the motion judge’s finding that she has not done all that she could to attempt to comply with the access order. The motion judge found that despite being on notice that attempts at stronger forms of persuasion may be required, the appellant did not go beyond mere encouragement. In these circumstances, the motion judge properly concluded that deliberate and wilful disobedience was established beyond a reasonable doubt.
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The most-consulted French-language decision was Descheneaux c. Canada (Procureur général), 2015 QCCS 3555

[1] La discrimination fondée sur le sexe dont les Indiennes et leurs descendants ont été victimes dans le passé concernant le droit à l’inscription au registre des Indiens (« le Registre ») se perpétue-t-elle encore de nos jours? Si oui, une preuve démontrant qu’elle se justifie dans une société libre et démocratique a-t-elle été apportée? Le Tribunal est-il lié par la décision rendue par la Cour d’appel de la Colombie-Britannique (« CACB ») dans McIvor c. Canada (Registrar of Indian and Northern Affairs)[1] (« McIvor ») ou existe-t-il des motifs lui permettant de s’en écarter en tout ou en partie? Ce sont là, en quelques mots, les questions essentielles qu’il faut résoudre ici.
(Check for commentary on CanLII Connects)

* 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.