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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 Lewis, 2019 ABCA 311

[8] There is a unique wrinkle in this case which rather diminishes its deployment as a case precedent in the future. At trial, Crown counsel conceded that a breach of the appellant’s s 8 Charter right had occurred during the investigation of this case. This concession seemed intended to be an admission of both fact and law. On appeal, the written factum for the Crown rather back-peddled from that concession by drawing and expressing guidance from the decision in R v Mills, 2019 SCC 22 (CanLII), 433 DLR (4th) 573 on the subject of the scope of reasonable expectation of privacy. At the oral hearing of the appeal, however, new Crown counsel (replacing the author of the factum) stepped up again to vindicate the trial concession albeit not so much on the law as on the basis that Crown counsel was satisfied that the defence at trial would reasonably have relied on the concession and refrained from leading further evidence on the topic of reasonable expectation of privacy.

(Check for commentary on CanLII Connects)

2. Kent v MacDonald, 2019 ABQB 669

[107] While it is agreed that the drywall does not have to be removed in all cases in order to meet the standard of care, it was required in this case as: a) there were signs of water ingress on the north wall, b) the exterior slope towards the west wall was significant, c) it was unknown if the floor was level as it was not properly measured, d) there was no impediment to removing the drywall to inspect further and it was specifically suggested by the Buyers and the Sellers, and e) there were other patent signs of possible water damage as noted in the Squair report (e.g. water problems and cracks visible on the inside foundation). Even if Mr. White concluded that there was no risk to the structural integrity of the Home, he ought not to have provided a recommendation that the only work required was re-grading in the next few years as this estimate of time was not based on any statistics or evidence-based predictions regarding the remaining life of the west wall. He also ought to have qualified in his report that the damage arising from the crack beyond the drywalls is unknown. The report, as written, was misleading to the Buyers.

(Check for commentary on CanLII Connects)

3. Canada v. Canada North Group Inc., 2019 ABCA 314

[48] This remedial purpose has been recognized time and again in the jurisprudence: Century Services at para 59. Not only does the Crown’s position undermine the objective of the CCAA, it will also result in fewer restructurings which will necessarily result in reduced tax revenue. Undermining the remedial objective of the CCAA for the sake of tax collection disregards the obvious benefit for the government of successful corporate restructurings. In other words, the Crown is biting off the hand that feeds it. Indeed, in this case, the Priming Charges allowed the debtor to continue to operate its business and raise sufficient funds to satisfy both the Priming Charges and the Crown’s claim. When the statutes are read harmoniously, as the chambers judge did, the objectives of both the Fiscal Statutes and the CCAA can be achieved.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Municipalité de Saint-Colomban c. Boutique de golf Gilles Gareau inc., 2019 QCCA 1402

[58] Il en ressort que la catégorie de jugements pouvant faire l’objet d’un appel de plein droit – ceux portant sur l’invalidité ou l’inapplicabilité d’une disposition parce qu’illégale ou inconstitutionnelle – n’est pas limitée aux contestations de nature constitutionnelle. Le libellé de l’article 529 al. 1 (1o) C.p.c. permet d’englober les contestations de règlements municipaux fondées sur des motifs relevant du droit administratif. Une analogie peut être faite avec l’article 76 C.p.c. qui requiert l’envoi d’un avis au procureur général « à l’égard de toute question de légalité », y compris « lorsque la légalité d’un règlement est contestée au regard des règles du droit administratif »[21]. Je note en passant que Boutique de golf a donné un tel avis au procureur général.

(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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