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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. R. v. Jarvis, 2019 SCC 10

[5] In my view, circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. To determine whether a person had a reasonable expectation of privacy in this sense, a court must consider the entire context in which the observation or recording took place. The list of considerations that may be relevant to this inquiry is not closed. However, in any given case, these considerations may include the location where the observation or recording occurred; the nature of the impugned conduct, that is, whether it consisted of observation or recording; the awareness or consent of the person who was observed or recorded; the manner in which the observation or recording was done; the subject matter or content of the observation or recording; any rules, regulations or policies that governed the observation or recording in question; the relationship between the parties; the purpose for which the observation or recording was done; and the personal attributes of the person who was observed or recorded.

(Check for commentary on CanLII Connects)

2. Durham v. Bennett, 2009 ABPC 66

[11] Finally this Court must decide if punitive damages for the deliberate trespass should be awarded. The Defendants were at pains to advise the Court that they felt that they had made reasonable attempts to communicate their concern regarding the overhanging branches and their intention to prune them themselves. Such attempts extended to one actual communication two years earlier when Mr. Bennett spoke to the Durhams’ 14-year-old son and asked him to tell his parents the Bennetts wished to speak to them about the tree. Mrs. Durham did do some pruning after that and no further words were spoken. Mr Bennett says he went over to the Durhams to speak to them perhaps three times, but they did not answer the door each time. One other time when they did have a conversation, outside, with Mr. Durham in his car, the tree was not mentioned. I find that the Bennetts were remiss in their failure to resolve this matter more amicably and that the trespass they committed was intentional, albeit they had instructed their agent not to cut any branches off over the Durhams’ property. This case is remarkably similar to the facts in Kiessling v. Varga, 2002 BCSC 90 (CanLII), [2002] B.C.J. No. 142, 111 A.C.W.S. (3d) 6 where again a neighbour cut overhanging branches beyond the property line. The Court there held that it was not easy to determine where in the air space the property line fell. While the parties failed to communicate properly with each other and the Defendant’s actions were somewhat high handed, there was no award for punitive damages. It was rare to find any cases of this sort where punitive damages were awarded and I will not do so here.

(Check for commentary on CanLII Connects)

3. Urbanson v Western Canadian Place Ltd, 2016 ABQB 32

[23] There was nothing in the evidence to suggest that the plaintiff was pressured, rushed or otherwise prevented from reading the waiver.

[24] Given the relative sophistication of the plaintiff and the formatting of the waiver, it is my view that HSG fulfilled its duty to make reasonable efforts to bring the import of the waiver to the attention of the plaintiff. Or, to use the language in the Karroll decision, supra, there were no circumstances to indicate to HSG that the plaintiff was not consenting to the terms in question.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was R. c. Blanchard, 2018 QCCA 1069

[34] Une conception aussi large et élastique de l’automatisme confond le caractère délibéré des gestes d’un accusé avec le caractère volontaire de ceux-ci. Accepter cette approche à l’automatisme dans le cas de l’intimée conduit à la conclusion que cette dernière aurait toujours une excuse valable pour boire à outrance et conduire car elle se trouverait en état d’automatisme presque chaque fois. En cautionnant l’expertise de la défense, c’est cette approche qui a été retenue par le juge de première instance[12]. Avec respect, une telle approche m’apparaît insoutenable sur le plan du droit et ne saurait être avalisée par cette Cour.

(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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