Today

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. Singh v. Trump, 2016 ONCA 747

[1] In the mid-2000s, Sarbjit Singh and Se Na Lee each bought a Hotel Unit in the Trump International Hotel, a five-star building to be built in Toronto’s financial district. Mr. Singh and Mrs. Lee were both middle-class residents of the Greater Toronto Area and had no intention of occupying the Hotel Units themselves. Instead, they bought the units as investments, expecting that they would profit by participating in the hotel’s “Reservation Program”.

(Check for commentary on CanLII Connects)

2. Mandel v Fakhim, 2016 ONSC 6538

[10] What does it say about what I told the jury and about the legitimacy of the jury’s role, if the judge may not only ignore their findings, but may make binding pronouncements that fly in the face of the jury’s findings? Facts cannot exist and not exist at the same time. The plaintiff’s injuries exist or they do not; they were caused by the motor vehicle collision or they were not. I am being invited to find that facts were proven at trial when the jury has already found that those facts were not proven. I cannot do that without undermining the role of the jury as the exclusive finders of fact. I cannot do that without making portions of the standard civil charge to the jury untrue. If a judge can find facts that are inconsistent with the jury’s findings and that have legal effect, what justification is there to summon people away from their lives to compel them to attend court? I am already being paid to do the same job anyway.

(Check for commentary on CanLII Connects)

3. R v Sidhu, 2016 ABCA 321

[12] The defence trial strategy was also to suggest that this was an unreasonably clumsy way for the appellant to commit the offence. Knowing what he knew of search procedures at the Remand Centre, the defence argued that the appellant could have successfully smuggled the drugs into the Remand Centre in one of a number of different, better ways. By not doing so, the defence argued, it could be said the appellant clearly did not know what was in the envelope and was, therefore, simply an innocent blind drug mule and unknowing dupe. The trial judge did not accept this.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision Barreau du Québec (syndique adjointe) c. Mercure, 2016 QCCDBQ 79

[22] Dans ce même courriel du 7 juillet 2016, l’intimé admet qu’il n’est pas en mesure de produire un état de compte à sa cliente, qu’il ne détient plus l’argent dans son compte en fidéicommis, que sa comptabilité est à ce point en désordre qu’il a dû mandater une équipe externe pour la remettre en ordre et qu’il devra procéder à un transfert personnel de fonds provenant de l’extérieur pour la rembourser, tout en précisant que cela serait terminé dans les 14 jours.

(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. Rhona DesRoches, FAIR

    Recent decisions in respect to car accident cases in Ontario courts speak to the need to review the use of juries in the personal injury context. Years of influencing juries through PR by the Insurance Bureau of Canada have undermined not just the victims, but our justice system itself. Unfair and negative commentary about injured MVA victims in advertising paid for by the industry bear fruit ($$$) for insurers in our courts. Maligning the injured has become so pervasive that in Mandel v Fakhim, 2016 ONSC 6538 the Judge has expressed himself as powerless, frustrated and disturbed by the result. We shouldn’t be allowing our justice system to be used as a club to beat down victims and their claims; it’s abusive and unnecessarily expensive for the taxpayer who is paying the costs.

  2. Ms. DesRoches, I found your comment quite provoking. But minor tweaking to juries I don’t think will escape the problem. And many of us in the legal profession, for many somewhat contradictory reasons, will get a little squeamish regarding major changes to juries (or restricting freedom of speech for the insurer), even if it ends up costing the tax-payer.
    It’d be very interesting to compare attitudes of the public in the provinces that have a proper public insurer for auto-accidents with Ontario’s.

  3. Rhona DesRoches, FAIR

    Ending the use of jury trials in personal injury cases doesn’t have much to do with restricting freedom of speech for insurers who will undoubtedly continue with their fight to reduce claims costs under the guise of a fight on fraud. The constant maligning of MVA victims over decades by the IBC/insurers in advertising has had the intended consequence of negatively influencing the public and that has included potential jurors. This is not just one case. In Bruff-Murphy v Gunawardena, 2016 http://canlii.ca/t/gmr5x there’s an acknowledgement that the expert evidence that the Judge found questionable may not have been viewed in the same way by the jury. Juries are made up of ordinary people with the ordinary expectation that the evidence they are presented with is honest. Anyone working in the personal injury field knows that this is often not the case when it comes to Ontario’s ‘experts’ whose medical opinions are relied on by insurers to delay and deny legitimate claims. Auto insurance is a dirty game played out in our courts and if the flawed evidence is going to be allowed in the door you can’t expect the ordinary jurors to filter out the junk medicine replete with biased or flawed opinions and come to a just decision. According to StatsCan there are over 59,000 (2015) auto insurance related cases on the docket in Ontario; aside from pointing out that this is indicative of an unaddressed problem with Ontario’s auto insurance, it’s a massive amount of money being laid out by taxpayers when 50% of claims are denied and end up in hearings.

  4. On the other hand, one would have to understand what “FAIR” – the acronym behind Ms. DesRoches name – means to glean that, just perhaps, she approaches the issue from less than a neutral perspective which, I point out, one would not know unless … etc.

    But let’s, instead, deal with something more significant. We have an Ontario trial judge who has just given every defendant represented by an insurance company, and probably every corporation, a good basis for arguing, in every motion or trial that this judge is assigned to, that he should recuse himself on the grounds of, at the least, apparent bias.

    Look at the first sentence in para. 9 of the reasons: “While jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers, the fact is that the jury system is still the law of the land.” I doubt very much that there was any evidence led on this trial on that issue.

    Funny thing is that, once upon a time, and maybe still in some jurisdictions, it is plaintiffs’ counsel who want the jury. It’s wasn’t always the case that, in trials by judge alone, plaintiffs’ counsel would lucky enough to get a judge suffering from a psychological syndrome once known as “defence counsels’ remorse”.

    Indeed, once upon a time, the FAIR organization was heard to argue strenuously for the retention of the jury trial in civil proceedings, exactly because it was sought that juries would be MORE inclined to help the plaintiff in claims, legitimate and otherwise. After all, who (amongst those of you who are or were practising lawyers and took plaintiffs’ cases) ever said that you’d chosen judge alone because the judge might ignore the facts because your client was “likeable”.

    My, how times have changed. (Feel free to hear the implicit snicker.)

    As to Mr. Justice Myers? Given his pedigree see – http://www.justice.gc.ca/eng/news-nouv/ja-nj/2014/doc_33033.html – he should have known better, regardless of whether he has or doesn’t have an axe to grind.

    Just imagine what would have been filed in the ONCA the day after the reasons for judgment were released, if he had (somehow) chosen to ignore the juries decision. Can we at least agree that it probably wouldn’t take an appellate court of 5 judges to deal with the appeal.

    Full disclosure: once upon a time, I helped keep Ontario, then BC, safe for the downtrodden, put-upon … insurance companies. Nonetheless, many a lawyer on the plaintiffs’ side – even lawyers in OTLA – picked up the phone to ask me a question which I usually readily answered, so long as I wasn’t in a conflict position, without asking to be retained. Funny thing that, no?

    David Cheifetz

  5. David, perhaps it is a sign of the times, even judges are fed up with the overuse of Ontario’s courts by insurance companies and the unfair outcome for legitimate victims. As far as I know judges come from both sides, plaintiff and defendant, and who better to express that Ontario’s court system isn’t working? I don’t see this as a bias but rather a comment on an evident injustice and the staggering volume of cases.
    As to bias on my part – I am the Chair of FAIR Association of Victims for Accident Insurance Reform, an organization that speaks for accident victims, access to benefits and a system that would treat victims fairly. Of course I am not neutral about an industry that treats their own clients so poorly – why would I be?

  6. Ms DesRoches

    “As far as you know” is exactly my point. Based on what I’ve read in your comments, to date, it appears you don’t.

    I expect that you don’t actually know what any judge is is fed up about, beyond whatever you want to read into whatever you read in published reasons for judgment.

    I’ll leave it that if, in fact, you have first hand, not publicly available, information about what a judge or judges actually think about the issues involved beyond what they’ve written in published reasons, then that raises a very significant question about how you got it and who has been doing things that he or she ought not have to have. (Heck, even the BC TLA would be concerned about that. OTLA certainly would be, not to mention people in various branches of Ontario’s provincial gov’t and some who get to wear uniforms for reasons that have nothing to do with Halloween.)

    “Legitimate victims”? “Accident victims” ?What’s an “illegimate” victim? What is a “victim” who isn’t an “accident” victim? “Their own clients”? You write as if you do not understand how first party (accident insurance) and third party (liability insurance) function and the differences between those two types of insurance. Are you quoting from some screed written for FAIR by some flack for submission to a venal MPP, or a credulous reporter? Are you being disingenuous or do those statements accurately reflect the state of your knowledge? Those questions are, for present purposes, rhetorical. I’m not asking you to answer them.

    I am, though, suggesting that you have a good, long, talk with a higher up at, say, OTLA, about the issues you are complaining about. I’m sure that somebody there will be quite happy to assist you. There are good, accurate, true ways to make the points I suspect you’re trying to make, which you can use in circumstances where truth matters, because there is, occasionally, some truth in your points. But you haven’t expressed it.

    As Chair of FAIR, some might claim you have an obligation to get your facts right, not spout inaccurate inanities. It’s not, however, my obligation any more (even if in some sense it might ever have been) to educate you. As Redd Foxx would have said to the late Freddie Prinz: it’s not my job.

    DC

  7. [3] … The usual experts for both sides gave the usual testimony. And the jury gave the usual verdict… [9] … While jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers, the fact is that the jury system is still the law of the land…. “

    Mr. Cheifetz,

    I’m not a lawyer but, as far as I know, judges speak to the public through their decisions. So, can’t a reader can fairly infer (from the passage above) that Justice Myers isn’t a fan of jury trials in the personal injury context. Yes? If so, perhaps it is for some (though not all) of the reasons articulated in the columns below. As you are aware, the Insurance Bureau of Canada is heavily funded to advance the interests of auto insurers. Part of those interests include propagating the myth of the omnipresent malingering opportunist looking to turn minor injuries into an early retirement package. The IBC’s non-stop efforts to paint all injured claimants as exaggerating fakers have been highly successful and have accomplished the intended purpose (to poison jury pools and to influence legislative/regulatory change). So I’m guessing the term “legitimate” claimants is meant to signify the ones who aren’t exaggerating injuries (despite the usual protestations of the usual preferred vendors of insurer-commissioned “independent” medico-legal, expert assessments).
    That said, I’m aware that many will disagree with my reading of Justice Myers’ decision. I can only hope that those who do won’t scold me with the unnecessarily vicious zeal you deploy.

    Brian

    Social Justice: Time to abolish Ontario’s civil jury trials – Law Times
    http://www.lawtimesnews.com/…/social-justice-time-to-abolish-ontario-s-civil-jury-trials Monday, 22 September 2014 08:00 | Written By Alan Shanoff | Print | Email … So why is it that we continue to make jury trials available for civil litigation? Surely …
    Time to end civil trials by juries | SHANOFF | Columnists | Opinion …
    http://www.torontosun.com/2014/07/05/time-to-end-civil-trials-by-juries Jul 5, 2014 – Time to end civil trials by juries. Judges will deliver better and faster verdicts, particularly in auto insurance cases​. alan-shanoff. By Alan …
    Illogic of jury awards | Shanoff | Columnists | Opinion | Toronto Sun
    http://www.torontosun.com/2016/03/26/illogic-of-jury-awards Mar 26, 2016 – Recent jury awards south of the border have me shaking my head in … Evidence at trialshowed this woman may never be able to return to …

  8. Rhona DesRoches, FAIR

    Mr. Cheifetz

    You are entirely entitled to your opinion, as am I. Unfortunately you’ve not expressed one other than to go on the attack in a personal way because you don’t like mine.

    At no time was there an expectation that you, or anyone else for that matter, had an obligation to educate me though it is interesting and somewhat humorous that you see it as your job.

    Your comments about people in uniforms or that my opinion has somehow been enriched by nefarious means is interesting – though I can’t quite discern the meaning of much of what you’ve said regarding screed written for FAIR, venal MPP etc, opinions are my own, writing is my own. I’m sure there are plenty of lawyers on both sides of the bar that don’t agree with what I’ve said, though few would express themselves with such anger and in such a personal way with a litany of insults.

    It’s a good thing that you’ve briefly acknowledged that you see some truth in the points that I’ve made about the use of juries in auto insurance litigation, that’s the point of a discussion board – we don’t have to agree.

    You can take my uneducated word for it that this statement supports what I’ve said and begs the question – should juries be used in Ontario’s overburdened courts when it comes to auto insurance cases?

    [3] ….The trial lasted 12 days. The usual experts for both sides gave the usual testimony. And the jury gave the usual verdict. The jury awarded the plaintiff just $3,000 for general damages and nothing at all for past or future income loss, medical care, and housekeeping costs.
    [9] While jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers, the fact is that the jury system is still the law of the land. This jury has spoken and did so loud and clear. If I find that the plaintiff has proven that he met the threshold, I would not only be making findings of law, but I necessarily would have to disagree with the findings of fact that are implicit in the jury’s decision. Yet I told the jury an obnoxious number of times in my charge that they, and only they, were the judges of the facts of the case. I told them that their community had called upon them to take 12 days out of their lives so that they could make findings that only they can make in an act of central importance to our democratic traditions. How can I legitimately now consider whether I find facts that the jury rejected?