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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. Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2019 CanLII 22225 (ON LA)

Turning to the Wigmore criteria, my conclusion is that the TTC has not met its onus of establishing that these documents should be considered privileged on a case-by-case basis. As noted above, all four criteria must apply for the privilege to attach on a case-by-case basis. As is commonly the case, the focus must be on the fourth criterion: whether the disclosure would cause greater injury to the relationship between the TTC and the employees who signed these letters than the benefit gained for the correct disposal of the current litigation. Here, particularly since the union is requesting documents with the names of the other two employees redacted, my opinion is that the potential benefits of the arbitrators having the full picture related to the union’s discriminatory discipline argument significantly outweigh any potential injury to the relationship between the TTC and these employees. In fact, there was no evidence that any specific injury to those relationships would result from disclosure of the documents. On the other hand, ruling that the documents are inadmissible would deprive the arbitrators hearing these cases of a potentially important piece of the union’s argument.

(Check for commentary on CanLII Connects)

2. Brazeau v. Attorney General (Canada), 2019 ONSC 1888

[427] In my opinion, an award of Charter damages to be applied for the benefit of the collective that are mentally ill inmates is consistent with the evolution of Charter damages that Justices Iacobucci and Arbour noted may require novel and creative features when compared to traditional and historical remedial practices because tradition and history cannot be barriers to what reasoned and compelling notions of appropriate and just remedies demand.

[428] Third and fourth, the government has not established any countervailing factors such as alternative remedies or good governance concerns, and there is no chance of double compensation given that the class-wide Charter damages are not being awarded for compensation. The quantum, as will be explained further in the next section of these Reasons for Decision, is determined based on the vindication and deterrence factors and is within the parameters of class action theories of aggregate damages.

(Check for commentary on CanLII Connects)

3. R. v. Myers, 2019 SCC 18

[1] The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.

[2] And yet there are a significant number of individuals in remand custody at any given time in Canada. In some cases, accused persons are detained in provincial jails for the entire length of the pre-trial process, which can amount to hundreds of days in custody. This appeal concerns those individuals, and their right to what has become known as the “90-day detention review” under s. 525 of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”).

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Dunsmuir c. Nouveau-Brunswick, 2008 CSC 9

1. Une fois de plus, la Cour est appelée à se pencher sur l’épineuse question de la démarche qu’il convient d’adopter pour le contrôle judiciaire des décisions des tribunaux administratifs. Au Canada, l’évolution récente du contrôle judiciaire a été marquée par une déférence variable, l’application de critères déroutants et la qualification nouvelle de vieux problèmes, sans qu’une solution n’offre de véritables repères aux parties, à leurs avocats, aux décideurs administratifs ou aux cours de justice saisies de demandes de contrôle judiciaire. Le temps est venu de réévaluer la question.

(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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