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. Ojanen v. Acumen Law Corporation, 2021 BCCA 189 (CanLII)

[57] Historically, damages in a wrongful dismissal action were limited to the loss suffered as a result of the employer’s failure to give proper notice: Addis v. Gramophone Co., [1909] A.C. 488 (H.L.). As this Court explained in Marchen v. Dams Ford Lincoln Sales Ltd., 2010 BCCA 29 at paras. 49–64, that historical position has evolved. Damages for wrongful termination are no longer so limited. The law now recognizes “that some employment contracts involve more than the provision of services for remuneration and that damages flowing from a wrong dismissal may take that fact into account”: Marchen at para. 58. The question becomes: what was in the reasonable contemplation of the parties when they entered into the contract: Marchen at para. 60.

(Check for commentary on CanLII Connects)

2. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

[1] This appeal and its companion cases (see Bell Canada v. Canada (Attorney General), 2019 SCC 66 (CanLII)), provide this Court with an opportunity to re-examine its approach to judicial review of administrative decisions.

[2] In these reasons, we will address two key aspects of the current administrative law jurisprudence which require reconsideration and clarification. First, we will chart a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision. Second, we will provide additional guidance for reviewing courts to follow when conducting reasonableness review. The revised framework will continue to be guided by the principles underlying judicial review that this Court articulated in Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190: that judicial review functions to maintain the rule of law while giving effect to legislative intent. We will also affirm the need to develop and strengthen a culture of justification in administrative decision making.

(Check for commentary on CanLII Connects)

3. R. v. G.F., 2021 SCC 20 (CanLII)

[1] Consent is the foundational principle upon which Canada’s sexual assault laws are based. For decades, this Court has recognized that “control over who touches one’s body, and how, lies at the core of human dignity and autonomy”: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 28. As such, the contours of consent are carefully delineated and jealously guarded. It is now indisputable that consent is a subjective state of mind, entirely personal to the complainant. There is no room for implied consent in Canada, and the range of mistaken beliefs an accused may lawfully hold about the complainant’s consent are tightly restricted by the Criminal Code, R.S.C. 1985, c. C-46.

[2] This appeal provides the Court with an opportunity to clarify the relationship between consent and the capacity to give consent. In my view, capacity and consent are inextricably joined. Subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Vinet c. R., 2021 QCCQ 3474 (CanLII)

[182] Le Tribunal qui procède à la détermination de la peine peut accorder une réduction pour la période de détention pré-sentencielle en vertu de l’art. 719(3) du Code criminel. Ce pouvoir discrétionnaire n’est pas réduit à une formule mécanique. Rien ne l’oblige à accorder une réduction de peine pour la période de détention[119], encore moins une réduction majorée. Évidemment, écarter une réduction de peine ne doit pas être une affaire de caprice non plus. Toute décision – d’accorder ou de refuser un crédit – doit découler d’une analyse raisonnée.

(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.