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 Hills, 2020 ABCA 263 (CanLII)

[112] The concern about uncertainty and having unconstitutional laws on the statute books assumes that, just because there has been a Charter infringement, the law enabling it must be unconstitutional. That assumption may not be justified in all cases. The problem may be that courts are too quick to re-characterize complaints about Charter-infringing conduct as constitutional challenges of the validity of legislation under section 52 of The Constitution Act, 1982. Courts do not engage in an assessment of the constitutionality of Criminal Code powers of arrest and detention every time the police are accused of breaching a citizen’s Charter rights in making an impugned arrest or detention. Likewise, courts ought not to engage in the assessment of the constitutionality of minimum sentence provisions every time an accused complains about cruel and unusual punishment.

(Check for commentary on CanLII Connects)

2. Dorman v. Economical Mutual Insurance Company, 2020 ONSC 4004 (CanLII)

[18] And the fact that s. 280 prohibits court actions by “an insured person” (in the singular) does not mean that a class action on behalf of several or many insured persons should therefore be allowed to proceed. Provincial interpretation statutes provide that any reference to the singular also includes the plural.[12]

[19] However, there is a more direct answer in the CPA itself. Every proposed class action begins with the filing of a single proceeding that must then be judicially certified as a class proceeding with a representative plaintiff.[13] Here, for example, Mr. Dorman as the “insured person” has filed a proposed class action against his defendant insurer and the defendant regulator. It is this initial and singular filing that is barred by s. 280 of the Insurance Act. The proposed class action cannot proceed because the filing of the initial action is prohibited by statute.

(Check for commentary on CanLII Connects)

3. Domenic Construction Ltd v Primewest Capital Corp, 2020 ABCA 265 (CanLII)

[26] When amendments are proposed after the possible expiry of the limitation period, the preferred procedure is to resolve the limitations issue at the time of the application to amend. Section 6 of the Limitations Act does not contemplate routinely allowing the amendments, and leaving the limitations issues for trial. The decision in Hryniak v Mauldin, 2014 SCC 7 at para. 28, [2014] 1 SCR 87 called for a “shift in culture” in the approach to summary determination of issues. Where a fair and just determination on the expiry of the limitation period can be made on the application to amend, the court should do so. Nevertheless, there are cases where the complexity of the facts or the state of the record preclude a final decision. In those cases, the amendments can be allowed, and the limitations issue sent to trial.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. Benoit, 2020 QCCDPHA 28 (CanLII)

[47] Tout au cours du processus disciplinaire, le Conseil peut exercer sa compétence à l’égard de cette ordonnance puisque son rôle est de s’assurer que les fins de la justice sont mieux servies par l’ordonnance rendue. D’autant plus que les dispositions de l’article 143.2 du Code des professions invitent le Conseil à décider des moyens propres à simplifier, faciliter ou accélérer le déroulement de l’instruction de la plainte et à abréger l’audience, ce qui complète les pouvoirs du Conseil quant à l’exercice de sa compétence en vertu de l’article 132.1 du Code des professions.

(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.