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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. Theriault, 2020 ONSC 3317 (CanLII)

[19] I am also mindful that there is a distinction between credibility and reliability. Credibility relates to the honesty of the witness’ testimony. Reliability relates to the accuracy of the witness’ testimony which engages a consideration of the witness’ ability to accurately observe, recall and recount an event; see R. v. H.C., 2009 ONCA 56, at para. 41. At times, a witness may credibly recount an observation or occurrence. However, that evidence may lack reliability for a number of reasons, including the conditions under which the witness made the observation as well as the impact of information received by the witness after an event. A witness whose evidence about some factual matter is not credible cannot be relied on to establish that fact. However, the converse is not automatically true as credibility is not a proxy for reliability. A credible witness may, nonetheless, give unreliable evidence; see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 526.

(Check for commentary on CanLII Connects)

2. R. v. Scholz, 2020 BCPC 120 (CanLII)

[112] Although the comments are certainly true for many parts of the Income Tax Act and Excise Tax Act, we are not dealing here with anything but simple, clear and easy to understand provisions of the Excise Tax Act. The relevant Sections related to this Case are simple, straight forward and easy to understand: if you are building your own home to live in, you cannot claim any GST Rebates; if you are a Builder who has title to or a beneficial interest in the house and are building it to sell, then you can claim GST Rebates. That is not complicated at all, even for a layman, let alone a commercial lawyer and businessman with Mr. Scholz’s background and experience.

(Check for commentary on CanLII Connects)

3. Uber Technologies Inc. v. Heller, 2020 SCC 16 (CanLII)

[112] Access to civil justice is a precondition not only to a functioning democracy but also to a vibrant economy, in part because access to justice allows contracting parties to enforce their agreements. A contract that denies one party the right to enforce its terms undermines both the rule of law and commercial certainty. That such an agreement is contrary to public policy is not a manifestation of judicial idiosyncrasies, but rather an instance of the self‑evident proposition that there is no value in a contract that cannot be enforced. Thus, the harm to the public that would result from holding contracting parties to a bargain they cannot enforce is “substantially incontestable” (Millar Estate, at p. 7, quoting Fender, at p. 12). It really is this simple: unless everyone has reasonable access to the law and its processes where necessary to vindicate legal rights, we will live in a society where the strong and well‑resourced will always prevail over the weak. Or, as Frederick Wilmot‑Smith puts it, “[l]egal structures that make enforcement of the law practically impossible will leave weaker members of society open to exploitation at the hands of, for example, unscrupulous employers or spouses.” (Equal Justice: Fair Legal Systems in an Unfair World (2019), at pp. 1‑2).

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Syndicat des travailleuses et travailleurs des centres jeunesse de Montréal c. Centre jeunesse de Montréal, 2004 CanLII 47834 (QC SAT)

[57] S’il est vrai qu’une preuve prépondérante suffisante pour atteindre le niveau d’appréciation habituellement retenue par les arbitres peut être faite au moyen d’une preuve circonstancielle, nous croyons que l’extrait suivant d’une sentence rendue par notre collègue l’arbitre Lise Tousignant et citée avec approbation par l’arbitre Sylvestre[1] dans une affaire impliquant Provigo Inc. Division Fleur-de-Lys précise correctement la force probante que cela implique : « Étant en matière de congédiement, il appartient à l’employeur d’assumer le fardeau de preuve. Cette preuve n’en est pas une hors de tout doute raisonnable, mais une preuve prépondérante, quel que soit le qualificatif qu’on lui donne, il faut qu’elle emporte conviction. »

(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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