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. Kaushal v. Vasudeva et al., 2021 ONSC 440 (CanLII)

[54] The risk of mischief on a virtual examination is an area which has yet to be fully explored, although the possibility has been adverted to. Myers, J. in Arconti et al. v. Smith et al, 2020 ONSC 2782, did not disallow the use of a virtual examination just because of the risk of mischief, but was certainly aware of the possibility when he said, at para. 25:

I do not dismiss the concern for abuse of the technology by a party who might be so inclined. It would not be difficult, for example, to put a person or another computer screen outside the field of view of the camera that could enable improper prompting of the witness. I suppose with current Bluetooth technology, even where parties are in the same room, a witness can wear a hearing device and readily receive improper prompting. People can also send hand signals to witnesses in court as well.

(Check for commentary on CanLII Connects)

2. PricewaterhouseCoopers Inc v Perpetual Energy Inc, 2021 ABCA 16 (CanLII)

[71] As this summary reveals, there are significant differences between an application to strike pleadings, and an application for summary dismissal, even though they both serve the same broader purpose of weeding out unmeritorious claims at an early stage. The analysis underlying the two remedies, in particular, is significantly different; summary dismissal depends on the evidence, whereas striking out precludes the use of evidence. It is for this reason that a “blended” striking/dismissal analysis is unhelpful. The reasons under appeal concluded that some of the claims could be both struck out and summarily dismissed. While the ultimate conclusion may be correct, attempting to analyze the two branches together tends to allow the evidence to colour the assessment of the pleadings, which is to be done without reference to the evidence.

(Check for commentary on CanLII Connects)

3. Clancy v. Farid, 2018 ONSC 7482 (CanLII)

[56] The doctrine of absolute privilege is well-settled and stands for the proposition that “no action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken, documents prepared and actions taken in the ordinary course of any proceedings, before any court or judicial tribunal recognized by law; the privilege extends to documents properly used and regularly prepared for use in the proceedings.” The privilege is not confined to statements made in court, but extends to all preparatory steps taken with a view to judicial proceedings. It is the occasion not the communication that is privileged. The immunity is not limited to actions for defamation: Salasel v. Cuthbertson, 2015 ONCA 115; 124 O.R. (3d) 401 at paras. 35-36.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. Bégin, 2021 QCCDPHA 1 (CanLII)

[20] Dans l’arrêt Anthony-Cook[3], la Cour suprême a précisé « qu’en présence d’une recommandation conjointe, ce n’est pas le critère de la “justesse de la peineʺ qui s’applique, mais celui plus rigoureux de savoir si la peine serait susceptible de déconsidérer l’administration de la justice, ou serait, par ailleurs, contraire à l’intérêt public ».

[21] Conséquemment, il est utile de se référer aux enseignements de la Cour d’appel dans l’arrêt Binet[4], indiquant que les principes devant guider le juge pour accepter ou refuser une suggestion commune sont différents de ceux applicables à la détermination d’une sanction.

(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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