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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. Association of Professional Engineers v. Rew, 2020 ONSC 2589 (CanLII)

[9] Third, Mr Schwisberg argued that the dynamics of a live hearing may be lost in a video conference. He cited an article published in 2007, co-authored by Professor Sossin (as he then was), and recounted an anecdote respecting appellate advocacy in which the late Justice Catzman of the Court of Appeal counseled appellate counsel to “watch the judges’ pens” during an appeal. The policy arguments for and against video conferenced hearings are not matters on which this court should opine. The Directions to the Profession are sets of policies and procedures directed with Province-wide effect in response to the COVID-19 crisis, and concerns about the means chosen to respond to the crisis are matters to be taken up with the Office of the Chief Justice, not individual judges across the Province. Of course, every judge retains the inherent jurisdiction to ensure that cases proceed fairly. However, the materials and arguments presented by Mr Schwisberg do no more than suggest that something may be lost in a video conferenced hearing. Something will be lost if court business does not continue, as best as can be managed, during the COVID-19 crisis, and I am not persuaded that any of the concerns raised by Mr Schwisberg justify departing from the processes established under the Directions to the Profession for the continuation of court operations.

(Check for commentary on CanLII Connects)

2. SAS v LMS, 2020 ABQB 287 (CanLII)

[40] “Reasonably” is a criterion for these discussions. Maximizing a child’s safety could be interpreted as placing the child in a sealed sterile bubble with no direct contact with any human. When parents are together, they generally agree on the level of risk they consider to be appropriate within their family. What is “acceptable” to one family may not be acceptable to another. When parents have separated and have joint guardianship and decision-making, they must come to agreement or have the courts make the decision for them. The decision will likely be made on the basis of what is reasonable in the context of that family with its history, as best as can be gleaned in a hurried, brief application.

(Check for commentary on CanLII Connects)

3. Fort McKay First Nation v Prosper Petroleum Ltd, 2020 ABCA 163 (CanLII)

[77] Alberta points out that the promise at issue in Manitoba Metis is quite different from any promise in this case. However, in my view, the question is not whether the so-called Prentice Promise must itself attract the label “solemn obligation” or “solemn promise”, or even whether it is sufficiently exacting to preclude any development in the Moose Lake area. The question, rather, is whether it was made in furtherance of the Crown’s obligation to protect FMFN’s rights under Treaty 8. If so, then it can properly be said to fall within treaty implementation as a measure designed to ensure the Crown’s obligations are fulfilled. To see why this is the case, the precise nature of FMFN’s treaty rights must be considered.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was CHU de Québec – Université Laval c. Investissement LA inc., 2020 QCCS 1355 (CanLII)

[47] Dans un contexte où la demanderesse détient des sommes qu’elle doit retourner au gouvernement, elle n’a aucun droit de les conserver et encore moins de les transférer à des tiers. Toujours dans ce contexte, elle n’a aucun droit sérieux à faire valoir pour qu’une ordonnance d’injonction interlocutoire provisoire soit délivrée.

(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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