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. Borowski v. Canada (Attorney general) [1989] 1 SCR 342
   

   SOPINKA J. — This appeal by leave of this Court is from the Saskatchewan Court of Appeal, reflex, [1987] 4 W.W.R. 385, which affirmed the judgment at trial of Matheson J. of the Saskatchewan Court of Queen’s Bench, reflex, [1984] 1 W.W.R. 15, dismissing the action of the plaintiff (appellant in this Court). In the courts below, the plaintiff attacked the validity of subss. (4), (5) and (6) of s. 251 of the Criminal Code, R.S.C. 1970, c. C-34, relating to abortion on the ground that they contravened protected rights of the foetus. Subsequent to the decision of the Saskatchewan Court of Appeal but by the time the appeal reached this Court, s. 251, including the subsections under attack in this action, had been struck down in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30 (hereinafter R. v. Morgentaler (No. 2)).

   From this state of the proceedings it was apparent at the commencement of this appeal that a serious issue existed as to whether the appeal was moot. As well, it appeared questionable whether the appellant had lost his standing and, indeed, whether the matter was justiciable. The Court therefore called upon counsel to address these issues as a preliminary matter. Upon completion of these submissions, we reserved decision on these issues and heard the argument of the merits of the appeal so that we could dispose of the whole appeal without recalling the parties for argument should we decide that, notwithstanding the preliminary issues, the appeal should proceed.

   In view of the conclusion that I have reached, it is necessary to deal with the issues of mootness and standing only. Since it is a change in the nature of these proceedings which gives rise to these issues, a review of the history of the action is necessary.

2. McConnell v. Huxtable 2014 ONCA 86
   

   [1] This appeal concerns the relationship between the Limitations Act, 2002 and the Real Property Limitations Act in the context of a family law dispute. It is a matter of first impression in this court. The respondent Judith McConnell brings an action for unjust enrichment seeking a remedial constructive trust in a property owned by the appellant Brian Huxtable. In the alternative, she seeks a monetary award. By June 2007, the respondent was aware that she had claims or potential claims against the appellant including a claim for unjust enrichment and a remedy of constructive trust. Since she did not start this action until February 2012, her action may be out of time if the general two-year limitation period in the Limitations Act, 2002 applies, but not if the ten-year limitation period in s. 4 of the Real Property Limitations Act applies. Thus, the issues in this appeal are: (1) which, if either, of these two limitation periods applies, or (2) whether neither Act applies, leaving a legislative gap such that there is no statutory limitation period.

   [2] The appellant brought a motion for summary judgment under s. 16 of the Family Law Rules. The motion judge, Perkins J., found that the Real Property Limitations Act applied. Alternatively, he found that there was a legislative gap and there was no limitation period for this action. I agree with the motion judge that the Real Property Limitations Act applies. I do not agree with the motion judge’s alternative conclusion that there is a legislative gap. Accordingly, I would dismiss the appeal.

3. Bernard v. Canada (Attorney General) 2014 SCC 13
   

   [2] Elizabeth Bernard is the protagonist in a legal odyssey which has found its way through three administrative tribunal proceedings, two rounds of judicial review in the Federal Court of Appeal and now an appeal to this Court. She is a member of a bargaining unit in the federal public service, but does not belong to the union which has exclusive bargaining rights for her bargaining unit. In labour relations terms, this means that Ms. Bernard is a “Rand Formula employee”; in other words, although she is not a union member, she is entitled to the benefits of the collective agreement and representation by the union and is required to pay union dues. The union is exclusive bargaining agent for all members of the bargaining unit and has representational duties — such as in collective bargaining, the grievance process, workforce adjustments, prosecuting complaints, and conducting strike votes. Those duties are owed to all bargaining unit members, whether or not they are members of the union. While Ms. Bernard has a right not to become a union member, she does not have the right to opt out of the union’s role as exclusive bargaining agent for all bargaining unit employees, including her.

The most-consulted French-language decision was Bernard c. Canada (Procureur général) 2014 CSC 13

[2] Elizabeth Bernard est la protagoniste d’une véritable odyssée judiciaire l’ayant entraîné dans trois procédures administratives, deux contrôles judiciaires en Cour d’appel fédérale et, maintenant, un pourvoi devant la Cour. Elle appartient à une unité de négociation dans la fonction publique fédérale, mais n’est pas membre du syndicat investi de droits de négociation exclusifs à l’égard de son unité. Dans le jargon des relations de travail, cela signifie que Mme Bernard est une « employée assujettie à la formule Rand »; autrement dit, bien qu’elle ne soit pas syndiquée, elle bénéficie des avantages de la convention collective, a droit à la représentation du syndicat et est tenue de verser les cotisations syndicales. Le syndicat est l’agent négociateur exclusif de tous les membres de l’unité. Il a en outre envers chacun d’entre eux — qu’ils soient ou non syndiqués — des obligations de représentation, en ce qui concerne notamment la négociation collective, la procédure relative aux griefs, le réaménagement des effectifs, la poursuite de plaintes et la tenue de votes de grève. Bien qu’elle soit libre de ne pas adhérer au syndicat, Mme Bernard n’a pas de droit de retrait quant au rôle exercé par celui‑ci en tant qu’agent négociateur exclusif de tous les employés de l’unité, y compris elle.

* 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.