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. Nearctic Nickel Mines Inc. c. Canadian Royalties Inc. 2012 QCCA 385
   

   [25] Referring to article 946.5 C.C.P., the appellant's contention is that the Arbitrator granted a mandatory injunction, i.e. specific performance, in order to force compliance with the contract. Since the power to render permanent injunctive conclusions of this nature is exclusive to the Superior Court, the award should be annulled for that reason alone. [26] Respondent replies that the Arbitrator did not issue an "injunction" within the meaning of article 751 C.C.P. but rather ordered the specific performance of a contractual obligation, which is tantamount to a conveyance of title. Therefore, the Arbitrator did not usurp the exclusive prerogatives of a judge of the Superior Court.>

2. R. v. Hutchinson 2014 SCC 19
   

   1] Control over the sexual activity one engages in 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). This principle underlies the offences of assault and sexual assault. Sexual activity without consent is a crime under the Criminal Code, R.S.C. 1985, c. C-46.

   [2] In this case, the complainant consented to sexual activity with a condom to prevent conception. Unknown to her at the time, her partner, Mr. Hutchinson, poked holes in the condom and the complainant became pregnant. Mr. Hutchinson was charged with aggravated sexual assault. The complainant said that she did not consent to unprotected sex. The trial judge agreed and convicted Mr. Hutchinson of sexual assault 2011 NSSC 361 (CanLII), (2011 NSSC 361, 311 N.S.R. (2d) 1). The majority of the Nova Scotia Court of Appeal, per MacDonald C.J.N.S., upheld the conviction on the basis that condom protection was an essential feature of the sexual activity, and therefore the complainant did not consent to the “sexual activity in question”. Farrar J.A., dissenting, held that there was consent to the sexual activity, but that a new trial was required to determine whether consent was vitiated by fraud 2013 NSCA 1 (CanLII), (2013 NSCA 1, 325 N.S.R. (2d) 95).

3. Khan v. Sinclair 2014 ONSC 1355
   

   [14] The evidence of lay persons such as the Plaintiff and his family members can only be adduced as further support for a physician’s medical evidence, not in place of it. As the Divisional Court put it at para 18 of Gyorffy, “s. 4.3, read as a whole, is concerned primarily with the evidence of physicians and the requirements their evidence must satisfy. It requires that there be such evidence ‘in addition to any other evidence’”.

   [15] Ms. Nguyen correctly points out that section 4.3 of the Regulation contains no relieving provision. The failure to adduce a physician’s evidence cannot be taken as a mere procedural oversight; rather, it is a failure to fulfill a key evidentiary requirement, specifically set out in the governing legislative instrument.

   [16] Having failed to adduce any medical evidence from a physician, the Plaintiff has failed to support the claim that he suffered permanent serious impairment of an important physical, mental or psychological function. Accordingly, the Defendants cannot be held liable for the Plaintiff’s non-pecuniary losses.

The most-consulted French-language decision was Service Bérubé ltée c. General Motors du Canada ltée 2011 QCCA 567

[5] Le débat s’inscrit dans la tourmente qui a secoué l’industrie automobile en Amérique du Nord. Après cinquante ans d’existence, un concessionnaire automobile General Motors du Canada Ltée (GM) établi à Trois-Pistoles s’est vu refuser le renouvellement de son contrat de franchise qui venait à terme le 31 octobre 2010.

[6] L’appelante (Bérubé) s’est adressée à la Cour supérieure pour obtenir diverses mesures déclaratoires et injonctives afin de forcer GM à renouveler son contrat.

[7] Invoquant une clause compromissoire, GM a demandé que le différend soit référé à l’arbitrage. Le juge Nadeau de la Cour supérieure a fait droit à la demande de GM et a référé le dossier à l’arbitre. Bérubé se pourvoit.

* 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.