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. Krug v Dakine Home Builders Inc., 2021 SKQB 241

[39] I raise this not to confuse the issue of liquated damages (which are absent in the contract) or whether Dakine should be paid for work already done; but rather to illustrate that since old times, the courts have seemed to view “time is of the essence” clauses in a rather restrictive manner. It is important to note that in line with this thinking, set out in Lamprell v Billericay Union (1849), 3 Ex 283, the parties here agreed that Dakine had the sole discretion to unilaterally change the possession date (of course subject to written notice which I will discuss later) and accordingly, this in my view, waters down the might of the clause. I also note Justice Wilkinson, in Jo-Mar Fashions Inc. v Giang, 2014 SKQB 251, 453 Sask R 159, considered such a clause and decided at para. 109 that such terms are not the complete answer to a claim of repudiation (see also Ambassador Industries Ltd. v Kastens, 2001 BCSC 484 at paras 26-27; and 1285592 Alberta Ltd. v Moderno Homes Inc., 2018 ABQB 23 where the surrounding circumstances were a factor).

(Check for commentary on CanLII Connects)

2. Shapiro v. Swingler, 2021 ONSC 6191

[39] In this case, in my view, procedural fairness is at the higher end of the spectrum. Although the Board holds relatively informal hearings, in accordance with section 184 of the Residential Tenancies Act, 2006, it is nevertheless required to hold hearings that are subject to the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. In addition, section 183 of the Residential Tenancies Act, 2006, emphasizes that, while hearings are to be expeditious, “all persons directly affected by the proceeding [are to be given] an adequate opportunity to know the issues and be heard on the matter” [emphasis added]. Where a landlord seeks to evict a tenant, the stakes are high for all parties. The decision maker is entitled to choose its procedure, including requiring that parties bring their evidence to the hearing. However, any such choices of procedure should not be applied rigidly. Ultimately, the issue is what is procedurally fair in the particular circumstances of the case.

(Check for commentary on CanLII Connects)

3. Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Adoption — 091, 2009 QCCQ 628:

[56] Certes, dans la présente affaire, personne ne contestera que le père, seul parent déclaré, pouvait légitimement signer comme prévu un consentement spécial, par écrit et devant deux témoins, en faveur de l’adoption de son enfant par sa conjointe avec qui il partage sa vie depuis plus de six ans (article 555 C.c.Q.).

[57] À moins de choisir de porter des œillères, il n’est toutefois pas possible de dissocier la question de la validité de ce consentement (pièce R-2) des étapes précédentes concoctées dans la réalisation du projet parental de ce couple. Ce consentement est vicié parce qu’il est partie prenante à la démarche illégale et contraire à l’ordre public. On ne parle pas de droit procédural, mais de droit substantif.

(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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