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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. Frampton, 2021 ONSC 5733

[14] Finally, I am aware that in many contexts, accommodations are made for unvaccinated persons. For instance, a student may nonetheless attend school even though they are unvaccinated as a result of medical or conscience-based reasons. This approach is the result of a cost-benefit analysis. It is thought that keeping every kid in school, even with medical limitations, is beneficial. Likewise, we see value in allowing people to enjoy their own views in respect to science and medicine. Those values are benefits deemed to outweigh the downside – the risk that certain diseases will manifest themselves. In my view, however, using this sort of reasoning in the Covid-19 context is apples to oranges thinking. With a relatively small cohort of students unvaccinated, the risk of an outbreak of diphtheria, rubella, polio and the like is exceedingly low. Those illnesses have effectively been run out of town such that accommodating the unvaccinated is largely inconsequential. The same cannot be presently said for Covid-19 which is now endemic and spreading in a significant and uncontrolled manner. It continues to qualify as a global pandemic and is causing substantial harm. As a result, in my judgment, the cost-benefit analysis breaks the other way when it comes to Covid-19 vaccination and jury duty. Any upside in accommodating an unvaccinated juror is outweighed by the downside of exposing the remaining jurors to risk of physical harm as we try to make this fourth wave the last one.

(Check for commentary on CanLII Connects)

2. Szeles v Costco Wholesale Canada Ltd., 2021 AHRC 154

[17] I agree with the respondent that the provincial and municipal public health regulations neither allowed the complainant to enter the store unmasked, nor did they prevent the respondent from instituting its COVID-19 health and safety policy. There is nothing in those regulations that prohibits businesses from requiring the use of face masks by employees or customers, and indeed both specifically provide that businesses may institute their own policies. Subject to specific prohibitions, there is nothing in the public health regulations that “exempted” the complainant from complying with the respondent’s policy.

(Check for commentary on CanLII Connects)

3. R v Cabrera, 2021 ABCA 291

[17] While parity is usually considered with reference to other cases, in the situation before us we are concerned with two co-accused who are very similarly situated. Indeed, the appellant argues that his antecedents and participation in the offence are virtually identical to that of his co-accused, Shlah, such that the parity principle requires the same sentence be imposed on both. He maintains that in the absence of a significant distinguishing factor, which he says does not exist, the trial judge erred in principle in imposing a greater sentence on him.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Clinique juridique itinérante c. Procureur général du Québec, 2021 QCCS 182:

[14] VU, malgré que la mesure partiellement contestée a indubitablement été adoptée dans l’intérêt public considérant la pandémie de COVID-19, que la demanderesse a démontré agir pour un groupe identifiable et vulnérable, soit les personnes en situation d’itinérance et que la vie, la sécurité et la santé de celles-ci sont mises en péril par l’application qui est actuellement faite de cette mesure suivant la preuve non contredite, ce qui relève également de l’intérêt public et non d’un intérêt purement privé;

(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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