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. R. v. Elliott, 2016 ONCJ 35

One cannot understand this case without knowing about Twitter. The evidence about Twitter – what it is, how it works and how its users understand that it works – came from four sources: the evidence of Police Constable Dayler, who is qualified as an expert in Twitter; the evidence of Ms. Guthrie, who works as a consultant and depends on Twitter for her work, and who tweets and reads others’ tweets extensively; the evidence of Ms. Reilly, who had sent over 300,000 tweets at the time she testified; and the tweets of Mr. Elliott, who did not testify but expressed his views about Twitter in some tweets that he sent.

(Check for commentary on CanLII Connects)

2. R v Abdulle, 2016 ABCA 5

[12] The appellant advances two errors by the trial judge in the application of the rule in Browne v Dunn. First, he says the trial judge erred in applying the rule to insignificant or minor details. The trial judge found that the failure to cross-examine with respect to alcohol was a detail not warranting a strict Browne v Dunn application, yet he said he would use it in assessing credibility. Similarly, the trial judge said he would not strictly consider the failure to cross-examine with respect to marijuana from a Browne v Dunn perspective, yet he did consider it from a credibility perspective.

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3. R v Seruhungo, 2015 ABCA 189

[31] We agree with our colleague’s assessment that these concerns go to authentication of the text messages as being communications between particular individuals, as opposed to hearsay. In response, we make these observations. First, no explicit objection to admissibility was made on this basis on the voir dire (and, given the trial judge’s determination on the hearsay objection, the need to address authentication never arose). Indeed, Seruhungo’s factum (at paras 39-41) makes clear that his objection was that the Crown’s purpose was to confirm the truth of the evidence of certain witnesses, which purpose made the text messages hearsay. Secondly, the trial judge did not address the standard of proof for authentication, nor was the indirect evidence that might have supported a finding of authenticity properly explored. Again, in view of his finding on hearsay, the question of authentication was neither put before him nor decided by him. In our respectful view, it is not for this Court to rationalize the trial judge’s decision upon a basis which was not properly argued on the voir dire, not raised on appeal, and not decided by the trial judge.

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The most-consulted French-language decision was Compagnie d’assurances générales Kansa Internationale ltée c. Lévis (Ville de), 2016 QCCA 32

[18] Une remarque préliminaire s’impose. Le dossier de première instance a été plaidé comme une poursuite contractuelle pour travaux et coûts additionnels encourus en raison d’un défaut de renseignement de la part du maître d’œuvre et aussi pour des conditions imprévues et imprévisibles lors de la mise en œuvre du projet sous l’autoroute. Durant ses observations devant cette Cour, cependant, Kansa a constamment tenté de réinventer sa cause d’action pour la convertir en poursuite pour comportement dolosif de la part de la Ville et de divers consultants, qui l’auraient sciemment induite en erreur sur la nature des sols, entraînant ainsi des travaux et coûts supplémentaires pour la portion hors tunnel et des plans et devis non réalisables en ce qui concerne les travaux en tunnel.

(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.

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