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. Reference re Greenhouse Gas Pollution Pricing Act, 2019 SKCA 40

[66] There is little legal merit in Saskatchewan’s specific concern about Parliament conditioning the application of a federal law on whether a province has chosen to exercise its own jurisdiction. This is because of a very simple point. Parliament can only act within its own sphere of legislative authority. Thus, if it can make a law applicable in a province in light of provincial legislative inaction, that necessarily means it enjoyed the authority to make the law applicable all along. Parliament cannot somehow acquire additional authority because of a provincial decision not to act in relation to a particular matter. Parliament either has legislative authority to act or it does not. There is no constitutional magic in the fact a province has failed to move in a particular policy area.

[67] This fundamental reality is perhaps somewhat obscured in areas like the regulation of GHG emissions where the constitutional boundaries between federal and provincial authority might be somewhat unclear and where there is at least some room for both levels of government to legislate. Nonetheless, the basic point remains the same. The scope of Parliament’s constitutional authority is not dependent on how or whether a province has exercised its own exclusive jurisdiction. Conversely, and putting the doctrine of paramountcy to the side, the scope of a province’s constitutional authority is not dependent on how Parliament has or has not exercised its jurisdiction.

(Check for commentary on CanLII Connects)

2. Lavallee v. Purdy, 2019 ONSC 2545

[47] As long as there is some admissible evidence to establish the foundation for the expert’s opinion, the opinion cannot be totally ignored. However, the more the expert has relied on facts not proven in evidence, the less weight the trier of fact will attribute to it.

[48] The conclusion relating to “startling” other drivers is not supported by any other evidence. The plaintiff’s own evidence is that neither he nor Rheaume was “startled” by the ambulance’s siren. In fact, the plaintiff became aware of the oncoming ambulance as a result of hearing its intermittent siren before the ambulance turned onto Brady Street. There is no evidence that any other driver, but the unidentified driver ahead of the plaintiff, was startled, and conducted itself in a panicked manner. There was no contact between any of the vehicles that were present that night, and the ambulance came to a stop some four car lengths away from the plaintiff.

(Check for commentary on CanLII Connects)

3. Ouellette v Repchuk, 2019 ABQB 329

[84] Scheduling something also does not advance the action if the thing scheduled never happens. Otherwise simply asking for a scheduling order, or serving an appointment but then cancelling the examination, would re-start the three-year clock and the plaintiff could then ignore the order that he obtained, or the appointment that he served, and delay another three years.

[85] It is the activity that somehow functionally advances the case to resolution that satisfies the requirement set out in rule 4.33. What we find here is a series of false starts, from 2014 to long after this application was filed. There have been applications filed, the assessment started but stalled, and no progress towards resolution.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Brousseau c. Laboratoires Abbott limitée, 2019 QCCA 801

[[136] Le fabricant d’un produit pharmaceutique a le devoir de mettre en garde les patients des effets secondaires potentiellement dangereux qu’il connaît ou qu’il devrait connaître lors de la commercialisation, et en continu par la suite, au fur et à mesure de l’avancée des connaissances scientifiques et des données postcommercialisation[85].

[137] Comme indiqué, selon le deuxième alinéa de l’article 1473 du Code civil du Québec, le fabricant pharmaceutique peut s’exonérer s’il prouve que le défaut de sécurité ne pouvait être connu au moment où le médicament a été fabriqué et qu’il n’a pas autrement été négligent dans son devoir d’information.

(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.