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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. Royal Bank of Canada v Reddy, 2007 ABQB 613

[14] Firstly, the applicant argues that her monthly payment, equal to the cost of the mortgage, insurance and taxes, amount to some evidence of part performance. However, these payments are equally consistent with a rental arrangement entered into between family members. Secondly, the applicant mentions in her affidavit the payment of “money we put down”. From the oral argument, I take this to mean that they contributed some money as a deposit on the real estate purchase. In Alvi v. Lai 13 R.P.R. (2nd) 302, 1990 CarswellOnt 570, the Court considered the payment of deposit monies as evidence of part performance. The court concluded that the payment of money by one party does not, in itself, constitute an act of part performance. Relying on Deglman v. Guaranty Trust Co. 1954 CanLII 2 (SCC), [1954] S.C.R. 725, [1954] 3 D.L.R. 785, the court concluded that the payment of money is a sufficient act and is not, in itself, indicative of the alleged agreement. The act of payment of funds is equally consistent with a gift or a loan. Therefore, the payment of rent and deposit funds do not amount to part performance of the alleged sale agreement between the applicant and respondent.

(Check for commentary on CanLII Connects)

2. R. v. Paquette, 2012 ONCJ 606

[9] The defendant must also trace his own ancestry to a local historic Métis community in the area where he was hunting. The evidence provided by the defendant (namely the family trees located in composite exhibit 2) show that the defendant traces his aboriginal roots back to Quebec. His evidence supports the fact that his ancestors did not arrive in the Sturgeon Falls area until sometime between 1856 and 1902. This is after the date of effective European control and therefore would not meet the Powley test. The Prosecutor provided me with many cases that are similar to this case and the courts have consistently found that a person who traces his aboriginal ancestry to eastern Canada, and whose family moved to Ontario after the date of European control, does not have section 35 rights in Ontario. The cases which support this proposition are R. v. Fortin [2006] O.J. No. 1166 (C.J.); R. v. Gagnon [2006] O.J. No. 4738 (C.J.); R. v. Guay [2006] O.J. No. 1165 (C.J.) and R. v. Beaudry [2006] O.J. No. 790 (C.J.). These cases all followed the test in the Powley decision.

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3. R. v. Laurin, et al., 2007 ONCJ 265

[13] By July 2004, it was clear that the MNO and the MNR were in conflict over where rights-bearing Métis communities existed in Ontario. The government’s position at that time was that there was insufficient evidence of Métis communities that would meet the Powley test in areas south and east of Sudbury. They remain steadfast in that position. (It is of interest to note that notwithstanding s. 35 of the Constitution Act, 1982, as recently as 2003 the MNR maintained that the Métis had no special right to harvest food anywhere in the province. “Ontario currently does not recognize any Métis right to hunt for food, or any ‘special access rights to natural resources’ for the Métis whatsoever” (R. v. Powley, supra, para. 47).

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Narayana c. Société de l’assurance automobile du Québec, 2015 QCCS 4636

[1] Au Québec, le permis de conduire une voiture doit comporter la photographie de la personne à qui il est émis. Cette photographie est soumise à certaines normes permettant de contrôler l’identité de la personne sur la base de ses caractéristiques physiques[1]. En outre, la tête doit être libre de tout couvre-chef, à moins que celui-ci soit porté tous les jours pour des raisons religieuses ou médicales. À titre d’exemples donnés par la Société de l’assurance automobile du Québec (« SAAQ »), le voile islamique, la kippa juive et le turban sont acceptés aux conditions additionnelles que le couvre-chef ne crée pas d’ombrage sur le visage, ni ne le cache.

[2] En l’espèce, la demanderesse a fait émettre une requête introductive d’instance en jugement déclaratoire et en révision judiciaire d’une décision de la SAAQ, qui lui refuse le droit de porter, lors de la prise de la photo pour son permis de conduite, un chapeau tricorne de pirate, à défaut d’être autorisée à porter une passoire à pâtes[2]. Aujourd’hui, la SAAQ présente une requête en irrecevabilité à l’encontre de cette procédure.

(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.

Comments

  1. The Quebec case may be of interest to a wider audience – in part for its silly aspects, but in part for the judge’s serious comments near the end. It involves the attempt of a “Pastafarian” to get her driver’s licence picture taken with a collander on her head, or a pirate hat. These outfits were alleged to be ‘religious’ outfits of the Church of the Flying Spaghetti Monster.

    The applicant was represented by Julius Grey, the noted human rights lawyer, and his daughter – but the judge found that no Charter values were engaged by the case. If there had been any attempt to suppress the applicant’s freedom to criticize orthodox religious beliefs through her ‘church’, that might have been a Charter issue, but having her picture in a prescribed form on her driver’s licence did not – especially since she had eventually agreed to be photographed in a ‘woman pirate’s outfit’ that met the rules, so she had a licence anyway.

    The judge has a few choice words about wasting scarce judicial resources, as well.