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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. Restoule v. Canada (Attorney General), 2021 ONCA 779

[527] Historical Aboriginal treaties should “be interpreted in light of the contexts in which they were signed, and that interpretation must be both liberal and dynamic so as to avoid the freezing of rights, while any ambiguity is to be resolved in favour of the Aboriginal signatories.”[444] This requires courts to go beyond the facial meaning of the text and to examine any evidence of how the parties understood the terms at the time the treaty was signed. Courts must undertake an extensive analysis of the record and witness testimony in order to make factual findings that will provide a foundation for them to apply the principles of treaty interpretation and arrive at a conclusion best reconciling the interests and intentions of both parties.

(Check for commentary on CanLII Connects)

2. Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2021 CanLII 112474 (ON LA)

11. This formulation was considered in the labour arbitration context by Arbitrator Surdykowski in Bowater ,(supra) at paragraph 10 as follows:

10. In any particular case, the test is not a subjective one. The question in an administrative law proceeding in which expertise is engaged is not whether a party subjectively believes that the adjudicator is unbiased and impartial. The test is an objective one: namely, whether a reasonably informed objective bystander, viewing the matter realistically and practically after thinking the matter through, would reasonably perceive the expert arbitrator to have pre-judged the issue(s) such that the matter is unlikely to be fairly decided (see, Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992]1 S.C.R. 623 (SCC); R. v. S. (R.D.), supra; and, Osterbauer v. Ash Temple Ltd., supra).

(Check for commentary on CanLII Connects)

3. R. v. Comeau, 2018 SCC 15

[26] Common law courts are bound by authoritative precedent. This principle — stare decisis — is fundamental for guaranteeing certainty in the law. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This is called vertical stare decisis. Without this foundation, the law would be ever in flux — subject to shifting judicial whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Dowd c. Binette, 2021 QCCA 1663

[28] En Cour supérieure, le juge a conclu que depuis l’arrêt Vavilov, il n’y a plus de déférence dans l’examen des décisions des tribunaux administratifs spécialisés lorsque le législateur a prévu un appel. Il a également mentionné que l’expertise d’un tribunal administratif est un concept maintenant écarté. Enfin, considérant les erreurs du juge de la Cour du Québec, qui a appliqué la norme de la décision raisonnable, tel que l’avait enseigné la Cour suprême jusqu’alors, il a accueilli le pourvoi en contrôle judiciaire et retourné le dossier à la Cour du Québec.

(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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